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Judgment
Sibghat Ullah Khan, J.—Heard learned counsel for the appellants at the admission stage.
Second Appeal No.943 of 2011 has been filed by the plaintiffs and arises out of O.S. No.617 of 1995 filed for cancellation of sale deed dated 10.11.1995 executed by Ravendra Singh, defendant No.1 of the suit in favour of Gajraj and three others, defendants No.2 to 5 in the said suit. The suit was dismissed on 12.04.2005 by Civil Judge, Junior Division, Shahjahanpur. Against the said decree, Civil Appeal No.36 of 2005 was filed which was dismissed on 03.08.2011 by A.D.J. Court No.6, Shahjahanpur. Against the said decree Second Appeal No.943 of 2011 has been filed.
As far as Second Appeal No.944 is concerned, it arises out of O.S. No.447 of 1993 filed by the same plaintiffs against the same defendants, Ravendra Singh and four others for specific performance of an agreement for sale alleged to have been executed on 06.04.1976 (unregistered) in respect of agricultural land in dispute for Rs.12,000/-after receiving Rs.10,000/-as earnest money. The suit was dismissed on 12.04.2005 by Civil Judge, Junior Division, Shahjahanpur. Against the said decree, plaintiff (since deceased and survived by legal representatives) filed Civil Appeal No.35 of 2005, which was dismissed on 03.08.2011 by A.D.J. Court No.6, Shahjahanpur. Against the said decree, Second Appeal No.94 of 2011 has been filed.
The suit for cancellation of sale deed was filed on the ground that suit for specific performance was pending. Accordingly, Second Appeal No.944 of 2011 which arises out of suit for specific performance requires to be decided first.
The defendant No.1, Ravendra Singh had denied executing any agreement for sale on 06.04.1976. Both the courts below held that no such agreement was executed, that in any case plaintiff completely failed to prove that she was ready and willing to get the sale deed executed.
In the agreement it was mentioned that some litigation was pending in respect of the land agreed to be sold and sale deed would be executed after conclusion of the litigation. In the plaint it was stated that on 20.05.1993 husband of the plaintiff came to know at Allahabad that the litigation had already ended on 09.12.1983. There was absolutely no allegation that meanwhile plaintiff enquired about the fate of the litigation from defendant No.1. The only case taken up was that plaintiff was waiting for notice from defendant No.1 about conclusion of the litigation. This clearly disproved readiness and willingness of plaintiff. The courts below particularly lower appellate court held that even according to oral evidence of hand-writing expert of the plaintiff there was lot of difference between the admitted signature by Ravendra Singh with his alleged signatures on the agreement for sale.
In the agreement there was no such provision that in case litigation which was going on ended against Ravendra Singh then what consequence would follow.
In my opinion, the courts below rightly held that firstly agreement was not executed secondly even if the agreement was executed still the plaintiff completely failed to prove her readiness and willingness. Inaction of plaintiff for more than then years was fatal.
Accordingly, I do not find any error in the judgment of the courts below given in the suit for specific performance. Absolutely no question of law has wrongly been decided. Plaintiff by exercising due diligence could very well know earlier that litigation mentioned in the agreement had come to an end. Second Appeal No.944 of 2011 is therefore dismissed under Order XLI Rule 11, C.P.C.
As Second Appeal No.944 of 2011 arising out of suit for specific performance is dismissed, hence Second Appeal No.943 of 2011 is also to be dismissed as after dismissal of suit for specific performance no ground to cancel the sale deed remains. Accordingly, Second Appeal No.943 of 2011 is also dismissed under Chapter XLI Rule 11 C.P.C.