Virendra Singh vs State of M.P. & another

Appellant/original plaintiff has filed this second appeal under Section 100 of Code of Civil Procedure against the judgment and decree passed on 12.2.2013 by the Additional District Judge, Baidhan, District Singrauli in Civil Appeal No.39-A/2010 reversing the judgment and decree passed by the Second Civil Judge Class-II, Singrauli on 28.10.2010 in Civil Suit No.47-A/2006. The plaintiff''s suit for specific performance of contract to sell in relation to agricultural land originally filed against eleven defendants was decreed by the trial Court, but in Civil Appeal filed by the defendants, the above mentioned Appellate Court allowed the appeal filed by the defendants and also allowed the cross-objection filed by the defendant No.12 Mobinuddin (subsequent purchaser) and totally dismissed the suit filed by the plaintiff.

It would be significant to mention here that during pendency of the relating suit before the trial Court itself, original defendant No.1 Ramdhani expired and his legal representatives were substituted.

Before the trial Court, plaintiff Sheshmani filed a civil suit on

5.2006 on pleadings that original defendant No.1 Ramdhani and defendant No.2 Ramlal and plaintiff are same caste fellows. Though plaintiff is originally resident of district Rewa, but his father served as Assistant Teacher in primary school, Hirrawah and after retirement had settled in village Hirrawah. The defendants are residents of village Hirrawah. In relation to agricultural land bearing survey no.1420 area 0.17 Are of village Hirrawah, Tehsil Singrauli, an agreement was executed by original defendants no.1 and 2, Ramdhani and Ramlal in favour of the plaintiff on 3.5.1997 under which it was contracted by the defendants No.1 and 2 that after decision of the pending suit between above mentioned defendants and their family members in Civil Court, they will sell above mentioned land in favour of plaintiff at the rate of Rs.30,000/- per acre. Defendants No.1 and 2 each received Rs.4000/-, thus in total Rs.8000/- were received by the defendants No.1 and 2 from the plaintiff and the agreement was verified before the notary. Original defendants No.1 and 2 have signed on the agreement in presence of the witnesses. After decision of the pending civil suit, the plaintiff asked the defendants No.1 and 2 to execute registered sale-deed after receiving total consideration, then defendants No.1 and 2 delayed compliance of their contract. The disputed land has fallen in share of defendants No.1 and 2, thus they are entitled to sell it. The defendants no.1 and 2 denied from taking the notice sent by registered post dated 10.1.2006 by the plaintiff. Defendants No.3 to 11 are recorded co-owners in the revenue record, thus they have also joined as co-defendants. The suit was valued for Rs.8000/- and it was also pleaded that the suit which was pending between the defendants No.1 and 2 and their family members was dismissed as abated on 11.10.2001 by the Court of Civil Judge Class-II, Baidhan and its appeal was also dismissed on 4.8.2004. Thus, the relief on specific performance of contract to sell was prayed. During pendency of the suit before the trial Court, defendant No.12 Mobinuddin was added, though in the plaint no any pleading was added in relation to him. 4. Before the trial Court, original defendant No.1 Ramdhani and defendant No.2 Ramlal and defendant No.4 Smt.Samudari filed joint written statement and pleaded that the disputed land is owned and possessed by all the defendants. No any agreement was executed on 3.5.1997 by the defendants No.1 and 2. The alleged agreement is forged and fabricated and not signed by defendants No.1 and 2, because original defendant No.1 Ramdhani is totally illiterate and fixes his thumb impression whereas disputed agreement bears his forged signature. The plaintiff is a clever and cunning person, who had filed suit to capture the fertile land of defendants. Defendants never denied from taking any notice. Plaintiff is not having any cause of action. Defendants No.1 and 2 had not received any amount from the plaintiff. The suit filed on 4.5.2006 is clearly time barred. Plaintiff is not entitled for any relief

The trial Court framed issues on the pleadings of the parties and after recording evidence of the parties and hearing decreed the suit for specific performance of contract to sell and also declared the transfer of disputed land made by the defendants No.1 and 2 in favour of original defendant No.12 Mobinuddin as void, but it also recorded finding that the plaintiff has not properly valued the suit and not properly paid court-fee and the valuation of the suit should have been Rs.12,600/-.

Original defendant No.2 Ramlal and legal representatives of original defendant No.1 Ramdhani filed civil appeal before the District Court, in which the respondent No.10 of that appeal Mobinuddin also filed cross-objection and the first Appellate Court recorded findings in reference to cross-objection of the respondent Mobinuddin that according to the plaint of the plaintiff itself, on the date of alleged agreement i.e. 3.5.1997 plaintiff Sheshmani was only 16 years old i.e. the plaintiff was minor at that time and thus was not competent to contract under the provision of Indian Contract Act and plaintiff''s suit was time barred and the plaintiff remained unsuccessful in proving that he had remained eager and willing to perform his part under the alleged agreement and the disputed land was not of exclusive ownership of original defendant No.1 Ramdhani and defendant No.2 Ramlal, but it was a joint family property having so many other co-owners, thus defendants No.1 and 2 were not competent to contract or sell the disputed land looking to the revenue papers and the consideration of land was not fixed in the agreement and the alleged agreement was also hit by the provision of Section 52 of the Transfer of Property Act regarding doctrine of lis pendens as on 3.5.1997 and civil suit was pending in Civil Court relating to disputed land, thus it appears that either the agreement was created by committing forgery or alleged signatures of the executants were obtained on agreement after pressurising them or after deceiving them and thus after allowing the appeal of the above mentioned defendants and crossobjection of respondent Mobinuddin, it totally dismissed the plaintiff''s suit, hence this second appeal has been filed by the plaintiff .

Learned counsel for the appellants vehemently contended that the age of the plaintiff was recorded in the agreement as 18 years and the learned lower Appellate Court erred in reversing the well reasoned judgment and decree passed by the trial Court, as original defendant No.2 Ramlal (D.W.1) has clearly admitted his signatures on the disputed agreement in his cross-examination and agreement was also proved by the advocate, who had drafted it and by depositions of other witnesses who have signed it. It is well settled that an instrument should be interpreted after taking into consideration of all its terms. It is true that original defendant No.2 Ramlal (D.W.1) has admitted his signatures on disputed agreement (Ex.P/1). In the first para of the agreement, it is clearly mentioned that a civil suit relating to disputed land is pending in the Court of Civil Judge Class-II, Baidhan and the mutation proceedings are pending in the Court of Commissioner, Rewa. In the agreement, it is not recorded that in case of decision of pending civil and revenue proceedings in favour of executants No.1 Ramdhani and No.2 Ramlal, they would execute sale-deed in favour of the plaintiff, but it is recorded that after the decision of the land, the disputed land would be sold by the executants to the plaintiff at the rate of Rs.30,000/- per acre and the land would not be sold to anyone, but at the end of first typed para of the agreement (Ex.P.1), a hand written line has been added in para no.1 to the effect that on giving the land, the interest would not be charged. In second para, it was typed that the executants are receiving Rs.4000/-each, thus in total Rs.8000/- have been received by the executants and the remaining consideration would be received at the time of registration. In the third typed para, it is mentioned that if the executants sell the land to any other person or disputed land is not decided by the Court in favour of executants, then the executants would pay interest at the rate of Rs.3% per month on the principal amount i.e. Rs.8000/-.

It is clear from the recorded terms of the agreement embodied in Ex.P.1 itself that even the total consideration of the sale was not fixed and it was only a contingent contract under which it was clearly stipulated that if the Court''s judgment goes against the executants i.e. Ramdhani and Ramlal or if they transfer the land to any other person, then only principal amount of Rs.8,000/- would be paid by them to Sheshmani with interest at the rate of Rs.3% per month. It is clear that it was only a loan transaction.

It is also well settled that the signed and verified pleadings of the plaint are binding on the plaintiff. Appellant/original plaintiff Sheshmani filed the plaint before the trial Court on 4.5.2006 and in title of the plaint itself at that time the age of the plaintiff Sheshmani was disclosed as 25 years. If the disclosed age of the plaintiff of 25 years on presentation of plaint on 4.5.2006 is undisputed by the plaintiff himself, it is clearly established that on the date of execution of Ex.P.1 i.e. 3.5.1997, the plaintiff would have been 9 years younger i.e. at the time execution of Ex.P.1, the plaintiff was 16 years old.

The relating provision of Section 11 of the Indian Contract Act regarding competency of the parties to the contract is as follows:- Section 11 Who are competent to contract:- Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.

Under the provision of Section 10 of the Indian Contract Act, all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. As on the date of agreement, plaintiff was only 16 years old according to the plaint itself, he was not competent to contract and under the agreement (Ex.P.1), an obligation was being made upon the plaintiff to pay the remaining consideration for sale at the time of registration of the sale-deed, thus such contract was not legal and enforceable by law because at that time, plaintiff was not competent to contract because of his minority though in Ex.P.1, plaintiff''s age is typed as 18 years, but it is clearly rebutted by the plaint filed by the plaintiff himself. It is clear that the Appellate Court has rightly held that at the time of execution of agreement (Ex.P/1), plaintiff Sheshmani was 16 years old, thus under Section 10 of the Indian Contract Act, it was void. Before the Appellate Court, it was clearly pleaded and objected by defendant No.12 Mobinuddin in para 4 of the basis of his cross-objection filed by him that the plaintiff was minor on 3.5.1997, thus the agreement was not a contract i.e. was not legal and enforceable and it was void. On this point, learned Appellate Court has upheld the above mentioned objection raised in cross-objection filed before it by the defendant No.12 Mobinuddin. Thus on this legal ground alone, the judgment and decree passed by the first Appellate Court appears to be totally in accordance with law reversing the judgment and decree passed by the trial Court, whereby the plaintiff''s suit was decreed.

It would be significant to mention here that in second appeal, the appellant has filed an application under Order 41 Rule 27 of the C.P.C. for taking additional documentary evidence on record. With a list of the documents, copies of sale-deed, affidavit and other agreement and written statement in other civil suit have been filed to demonstrate the fact that the original defendant No.1 Ramdhani was able to put his signature on documents, but the plaintiff who is son of a teacher according to his evidence has not filed any document regarding his date of birth.

It was clear from the revenue records whose copies were filed by the appellant before the trial Court as Ex.P.3, Ex.P.4, Ex.P.5 and Ex.P.6 that previously agricultural land described in the agreement was recorded in the name of Dhawan, who was father of original defendant No.1 Ramdhani and defendant No.2 Ramlal. From Ex.P.7 filed by the plaintiff which is khasra nakal of the agricultural land, it is clear that in between years 2001-02 to 2005-06, after the death of Dhawan, disputed land was mutated in the name of widow of Dhawan namely Samdari and ten other legal representatives of Dhawan including two sons Ramdhani and Ramlal. Thus, it is clear that Ramdhani and Ramlal only two legal representatives of Dhawan were not competent to sell the relating land to anyone. For the sake of argument, it could be said that they were competent to sell their undivided shares in it only. Thus, the First Appellate Court was right in holding that only two legal representatives of Dhawan were not competent to sell the relating land to the plaintiff. It is clear that the first Appellate Court has properly and legally appreciated the oral and documentary evidence filed before the trial Court and it is clear that the learned trial Court has overlooked the material and substantial infirmities and weakness of the plaintiff''s evidence.

Learned trial Court had declared the transfer made by the original defendants No.1 and 2 in favour of defendant No.12 Mobinuddin as void, though it is clear that no any such relief was claimed by the plaintiff Sheshmani in his amended plaint after incorporating Mobinuddin as defendant No.12 before the trial Court. It was not even pleaded by the plaintiff that the defendants No.1 and 2 had executed any sale-deed in favour of defendant No.12 Mobinuddin. Similarly, it was not pleaded by the plaintiff in his plaint by amendment that defendant No.12 Mobinuddin was having knowledge or intimation about the agreement to sale made by original defendant No.1 Ramdhani and defendant No.2 Ramlal in his favour. Thus, it is clear that the learned trial Court had committed legal error in decreeing the suit for specific performance of contract to sell, whereas in the agreement (Ex.P.1), it was clearly stipulated that if the land is transferred by the executants to any other person, then only the principal amount would be returned back with interest to the plaintiff. The learned trial Court totally overlooked the terms and conditions of the disputed agreement (Ex.P.1). Thus, perversity of the findings of the trial Court is totally clear, who declared the sale-deed executed in favour of additionally added defendant No.12 Mobinuddin as void, whereas such relief was not asked by the plaintiff and even no any saledeed or its certified copy executed in favour of defendant No.12 Mobinuddin was filed before the trial Court by the plaintiff. Thus, it is clear that the judgment and decree passed by the learned trail Court was against the law and procedure. It is clear that the trial Court''s findings were perverse and the first Appellate Court has not committed any error in reversing the judgment and decree passed by the trial Court.

In such premises, I have not found any substance on which the impugned judgment and decree of the first Appellate Court could be said to be contrary to any law or procedure, consequently, I have not found any substance or circumstance in the matter giving rise to any question of law rather than substantial question of law. Consequently, this appeal being devoid of any merits deserves to be and is hereby dismissed at the stage of motion hearing. There shall be no order as to the costs.