Motilal vs Ramlal

Rohit Arya, J.—Heard on the question of admission.

The instant appeal by appellant/plaintiff u/s 100 of C.P.C. is directed against the concurring judgment and decree dated 12/1/2005 passed by Additional District Judge, Chachoda, District Guna (M.P.) in Civil Appeal No. 58-A/2003; confirming the judgment and decree dated 26/2/2002 passed by Second Civil Judge, Class-I, Guna in Civil Suit No. 20-A/2000. Plaintiff''s suit for specific performance has been dismissed.

Plaintiff filed a suit inter alia contending that suit land ad-measuring 4.180 hectare situated in survey No. 169 of village Chak-khurdon is of the ownership of Pannalal. Pannalal was unmarried and he had no children. Defendant-Ramlal is son of brother of Pannalal namely Dhanji. Ramlal succeeded the suit land after death of Pannalal. It is further alleged that vide agreement to sale dated 6/7/1972, Ramlal agreed to sale the suit land to plaintiff for a consideration of Rs. 2,000/-. As suit land was not mutated in the name of Ramlal, therefore, it was agreed that within one year after mutation the sale deed shall be executed. It is further alleged that possession of the suit land was given to plaintiff. Defendant Ramlal when failed to execute the sale deed even after two years, the plaintiff sent a registered notice to defendant on 8/7/1975 but the defendant refused to execute the sale deed. Instead the suit land was sold by Bhawaribai, Laturibai and Kasturibai vide registered sale deed dated 20/5/1982. On the aforesaid facts, the plaintiff filed the suit for specific performance of agreement to sale dated 6/7/1972 in alternative praying that if execution of sale deed is not possible then suit be decreed directing refund of consideration of amount of Rs. 2,000/- alongwith interest at the rate of 1% per month since year 1974 with cost.

Defendant No. 1 filed written statement and denied the plaint allegations. It is submitted that Pannalal after his death was survived by his widow Bhawaribai and two daughters Laturibai and Kasturibai. It is denied that he had succeeded the property of Pannalal including the suit land. After the death of Pannalal, defendant is not his heir and since he is not heir of Pannalal, therefore, there is no occasion for him to seek mutation of suit land in his name. It is submitted that in fact the plaintiff carries on business of money lending and plaintiff got executed an agreement (Ex. P/1) on advancement of amount at the monthly interest of 2% per month which amount has been shown in the agreement as the sale consideration. He has never delivered the possession of the suit land. It is denied that the plaintiff is in possession of the suit land for last 2 years as claimed. It is further averred that the plaintiff has no right or title over the suit land. With the aforesaid pleadings, the defendant had prayed for dismissal of the suit.

Defendants No. 2-3 and 6-7 have also filed written statement denied the plant allegations. It is submitted that actual owners Bhawaribai, Laturibai and Kasturibai have transferred the suit land to defendants No. 6 and 7 by registered sale deed on receipt of consideration of Rs. 1,13,000/-.

With the aforesaid pleadings, trial Court framed issues and allowed the parties to lead evidence. Trial Court threadbare discussed the entire oral and documentary evidence on record and dismissed the suit.

On appeal, the first appellate Court has again re-appreciated the entire evidence on record. In para 9, the first appellate Court has discussed the submission advanced by the plaintiff/appellant that the amendment was brought in the suit in relation to certain assertion on the part of plaintiff as regards alleged adoption of the defendant Ramlal by Pannalal and for adding of Unkarlal and Girraj as defendants in the suit. The first appellate court upon perusal of the order-sheet of the trial Court dated 1/7/1995 has observed that on 27/9/1985, the amendment to the extent of adding the additional defendants was allowed and remaining part of the amendment i.e. admission of the plaintiff that Pannalal was issueless and the defendant is adopted son of Pannalal, were disallowed. However, by playing fraud on the Court, the plaintiff has amended the plaint and incorporated such amendments which were not allowed. Such amendments were struck off by the trial Court on cost of Rs. 200/-. Order sheet dated 27/9/1985 was also perused. Further it has been found that there is nothing on record that defendant Ramlal was adopted son of Pannalal. It is also found that Pannalal was not issueless. Hence, evidence led in that behalf for want of pleadings were found to be of no consequence and no findings could be arrived at on such evidence for want of pleadings. That apart, in the following paragraphs No. 11 and 12, the first appellate court has further discussed the evidence to demonstrate lack of bona fides on the part of the plaintiff in the matter of averments in the plaint and evidence led during trial. Even otherwise, plaintiff in his deposition has not stated that defendant Ramlal is adopted son of Pannalal even when he was examined in the year 1977 or when he was examined in the year 1981. As such the story coined by the plaintiff as regards adoption of Ramlal by Pannalal was found to be concocted and worth discredit. For the first time, the plaintiff stated on 16/4/2001 after filing of the suit in year 1976 that Ramlal was adopted son of Pannalal. In para 15 he has stated that in the alleged agreement to sale (Ex. P/1) Ramlal is not described as son of Pannalal. As a matter of fact Dhanji, brother of Pannalal had three sons namely Ramlal, Gyarasiram and Sabulal. Bhawari was initially wife of Dhanji and after death of Dhanji, she married to Pannalal and two daughter namely Laturibai and Kasturibai were born out of this wedlock and they were the legal heirs of Pannalal. With the aforesaid, the first appellate Court has held that Ramlal was not adopted son of Pannalal and therefore, he had no right, title or interest in the suit property for which an agreement to sale could be said to have been executed in favour of plaintiff. In fact the heirs of Pannalal namely Bhawari, Laturibai and Kasturibai by sale deed dated 20/5/1982 had sold the suit property to defendants No. 6 and 7 on a consideration of Rs. 1,13,000/-. Under such circumstances, first appellate Court confirmed the findings of the trial Court as regard non-executability of the aforesaid agreement to sale. However, the trial Court as well as first appellate Court had granted the relief of refund of amount of consideration as claimed in the suit.

Having gone through the judgment of the trial Court as well as of the first appellate Court, this Court is of the opinion that alleged agreement to sale dated 6/7/1972 was not executable as Ramlal was not successor of Pannalal and therefore, the same could not said to have been validly or legally executed by Ramlal. Hence, no relief on the basis of aforesaid agreement can be granted to the plaintiff. The entire gamut of matter is in the realm of facts. The findings recorded by both the Courts below are pure findings of facts which in the opinion of this Court do not warrant any interference u/s 100 of CPC. No question of law, much less substantial question of law arises in this appeal. Appeal is therefore, dismissed.