Chandrakant Patel vs Shakoor Khan

J.K. Maheshwari, J.—Heard on the question of admission.

This appeal is by the plaintiff against the judgment and decree dated 26.2.2005 passed by District Judge Guna in Civil Appeal No. 46A of 2002 partly decreeing the suit of the plaintiff setting aside the judgment and decree of the trial court dated 10.4.2002 passed in Civil Suit No. 29A of 1995 by II Civil Judge Class I Guna.

In the present case, the plaintiff instituted a suit for specific performance of contract with respect to the agricultural land of Survey No. 403 out of total land 0.627 Hectare of village Kusmauda Tehsil and District Guna. It is said that the land in question was received by the defendant no. 1 Sakoor Khan on patta from Bhudan Yagya Board. The defendant entered into an agreement to sell with the plaintiff with respect to the suit land for a consideration of an amount of Rs. 10,000/-. The sale deed was required to be executed after seeking permission from Collector. However, when the sale deed was not executed even after issuance of notice by the plaintiff, the suit seeking specific performance was filed.

The defendant filed his written statement denying the plaint averments and also denied execution of the agreement to sell. The defendant has further denied the readiness and willingness, and said that execution of the sale deed was not possible without permission of the competent authority. It is said that permission was not granted for a decade, therefore, amount received by him have been refunded to the plaintiff. The objection with respect to filing of the suit as barred by limitation has also been raised making prayer to dismiss the suit.

Learned trial court has framed as many as six issues, after recording evidence of parties, dismissed the suit holding that execution of the agreement has not been proved. The trial court held that the execution of the agreement has been proved, and the amount paid by the plaintiff has been refunded back by defendant. It has also been observed that the plaintiff has not discharged the burden to establish that the amount returned by the defendant has not been received, however, dismissed the suit.

On filing appeal, the appellate court confirmed the finding with respect to execution of agreement in favour of the plaintiff but decreed the suit with respect to refund of the amount along with interest. Being aggrieved by judgment and decree passed by two courts, this appeal has been preferred.

Shri Sagoria learned counsel appearing on behalf of the appellant has strenuously urged that the appellate court committed error to not to exercise the discretion decreeing the suit for specific performance of contract specified u/s 20 Sub Section 2 of the Specific Relief Act, 1963. It is his contention that in the facts and circumstances of the case, in absence of a case as exceptions carved out, discretionary relief should not be refused. However, the substantial question of law arises for determination in this appeal to admit it for final hearing.

Per contra, Shri Santosh Agrawal learned counsel representing respondent submits that it is a case of Bhudan Yagya Board and execution of the sale deed was only possible after seeking permission from the competent authority which could have been granted after 10 years, however, at this stage, wherein, agreement to sell was executed in the year 1983 and after 30 years, the decree of specific performance has rightly been refused by the appellate court because, the case is one of the rare of the rarest exceptions of hardship to which, interference in the second appeal in exercise of jurisdiction u/s 100 of CPC is not warranted.

After hearing learned counsel for the parties and on perusal of record, execution of agreement between the plaintiff and the defendant has been proved but looking to the contents of the notice given by plaintiff to the defendant, the issue regarding readiness and willingness offering remaining amount and to give time for execution of the sale deed is not apparent on record. In addition thereto, the agreement to sell was executed in 1983 whereas, the decree of refund of the amount has been directed by the appellate court in the year 2005. For a land of Bhudan Yagya Board to which permission was granted by Collector after 10 years from the date agreement, however, grant of decree at this stage for specific performance do not appear to be justifiable due to hardship. Thus, in my considered opinion, affirming the finding of lower appellate court with respect to refund of the amount, substantial justice has been done by the appellate court, however, in such discretionary relief granted by the appellate court, interference in second appeal is not warranted.

Accordingly, this appeal filed by the appellant is hereby dismissed.