T .ui-fy .^•.•^^•y.... ....-^^1^-"" ..•••••":^/^"^.-^-"- ^s^ t<<"...--<' '^••"" ^ ^ '^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR rc.c.). /^ PLAINTIFFS/APPELLANTS. ^Smt. NIRMALA DEVI MAJETHIA, aged about 65 years, wife ofShri Jayantilal Majetfua, resident ofGeeta Nagar, Choubfc Colony, Raipur, Tahsil aad District Raipur(CG.) VERSUS. DEFENDANTS/RESPONDENTS. ^)' 1?1 ,<)-; ^ !>•• ^ ^ GANPAT @ GANGA PRASAD, aged about 26 years son ofMaksudan Dahariya; Smt. PARAG BAI aged about 57 years, Widow ofLate Shri Maksudan Dahariya, Both resident ofVillage Dmnartalab, near Police, Station Ama Naka,Raipur, Tahsil and District Raipur. ^3) STATEOF C.G., through Collector,Raipur. t7^" ,«) Smt.USHA KHATWANI Wife of.Girdhari Khatwani, Near, Mill ofM/s. Jashan and Harimal, across Telghani Naka, over bridge, Raipur, Tahsil and District Raipur, C.G. FIRST CIVIL APPEAL UNDER SECTIQN 96 OF CODE OF CIVIL PROCEDURE VALUED AT BS."gO,800/- COURT FEES PAIDRS. 7120/-. XI-HC-78 *11+1MI sh<4icb 3^'^rpTIcPr, siiTfly'Ko, (sidi'My riar^. .^. :A'P; ./.^/ .';!,GO ^ ¥R 200 311^1 4^cb (yit^q^.ST) sn^r^irR-fi'sb gqr 311^1 sbxi»b ?TctTWHl%(T3n^r 27.02.; Shri G.D.Vasvani, Counsel Heard on admission. The appellant/plaintiff is dated 28.02.2006 passed by ^h Suit No. 41-A of 2004 whereby 25.03.1^8 by the respondente/d^fendants to the appellant/plaintiffwas refusejd. ajgrieved by the judgment and decree ^dditiona! District Judge, Raipur in Civil tpecific performance of contract dated No.1 & 2 to sell the suit land defentiants 2. The respondents / statement and were ex parte in the| 3. During the pendency of the| & 2 sold the suit lands i.e. land Kh.No.299 area 0.129 hectares 4 Halka Number 104, revenue circlt the respondent / defendant Consequently, respondent No.4 was «hl<lfc]<n-<H|t|(lTiffgc3'<RlWI< ^iSTl^q-sn^T :or the plaintiff/appellant. No.1 & 2 did not fite wrttten tower Court. suit, the respondente/defendants No.1 Kh.No.490/1 area 0.129 hectares and .ituated in w'llage Dumartalab, Patwari ' Raipur, Tahsit and District Raipur, to Mo.4 by a registered sale deed. also added as a defendant, P.T.O. XI-HC-78 ^ii^T^T^rN; (Wsn^rOTR? ^sr •^raiwr, ^Tfl+f'i?, i«)^iyy<. HI^CWsb^tch ^I 200 w^\ 4^cb (^i'isi^y') WffWHfgtTW^T WffcPftT WRTT' ^' fel^ rfSTRTC ^ST^lTSTf^T 4. The appellant/plaintiff did r^ot examine herself. The sole wibiess examined by her was Jayantilal, |her husband in whose favour she had executed a general power of attotjney. The agreement dated 25.03.1998 conteiined the foltowing conditions The land would be larcated by the defendants and if upon such measurement ^ie land was found to be less than the ianci agreed to be sotd, the consideration would bs suitably reducecl; B) The appellant/plai|ntiff shall pay the remaining consideration within one y^ar from frie date of agreement and get a sale deed registered|in her favour. C) The Vendor shalt olj>tain permission under Section 26 of the Urban Land (Ceiiing ejnd Regulation) Act to selt the lands before conveying titie in fa|vour of the appellant. D) It was atso stated fn the agreement dated 25.03.1998 ttiat the vendor had deliv^red the possession pf the suit land to the appeltant / ptaintiff. 5. The respondent No.4 foted ttie suit pleading that prior to the agreement dated 25.03.1^8, tl^e defendants/respondents No.1 & 2 had, on 01.10.19^, agreed to sell afericulturat lands including the suit tand to her and.in pursuance to such agreement a registered sate deed was I 1 XI-HC-78 ^nl^T^rf^ifq; (TSfTSn^Tsh^iq- < 3^T '^IWMff, wAww, (s|c)iy^<, HWcfT Sb^lcb ^T 200 t^T^ach ('idi^sl^iT) BTtn'WdfStTsn^r -3 executed by the defendant^ respondent/defendant No.4. the sole witness Jayantilal 5mfefl^ w^rr'ffte^ ^ffzrc ^srf^R'STT^T No.1 & 2 in favour of the 6. The appetlant/plaintiff did ttot enter the witness box and examined P.W.1 i.e. her husband. The respondent/defendant No.4 exaii|iined herself and Mannsingh Sahu as D.W.2. 7. The learned 9th Additionat District Judge refused to grant specific performance of contract on the flallowing grounds and ordered refand of the advance of Rs.20,00(V- paid |?y the plaintiff with interest at the rate of 6% from 25.03.1998 till payment.) i) that the plaintiff had Jfailed to prove readiness and ii) execute the registered if the defendants No.1 willingness to perform h|er part of the contract; no evidence was led t^> show as to on what dates did the plaintiff or her hu^band asked the defendants to ale deed; & 2 had failed to execute the registered sale deed djespite repeated requests by the husband of the plaintffF within a period of one year, there is no explanatio h as to why for the first time a registered notice was ^ent to the defendants No.1 &.2 TT" XI-HC-78 3ii^r ^rf^^iq; TOT3:I1??Tsbtlltt' 3^ ^ww^, ^i!\v'i«,^'fwy, *TTOdl sfifllcb ^ 200 Sll^l 4;|ct> (yi(^^ff) swwtifscrsn^T 21000 date V) by the plaintiff on 06.07.2100( three months from the under the agre$ment th^ executed within one year; iv) Although the agreemet|it possession to the plairltiff, Jayantilal P.W.1 did not co|' the plaintiff led no evidenc^ from the date of agreem|i funds to pay the remapi defendants No.1 & 2; no evidence was led to asked the defendants No|. demarcated and measuredl; vii) if as per agreement the delivered to the ptaintiff sh^ demarcated which was notl mentioned delivery of yet the testimony of 1-roborate the above fact; to show that within one year |ent she had the necessary |ning consideration to the VI) sh4w |8. It is well settled that under S|< |1963, the jurisdiction to decree spec(ific |the Court is not bound to grant such feo. At the same time, the discretion |not be arbitrary but guided by sour|d |case, there is not even any iota of q)l<lI(l41;Tt1111-lTfffS^)''Cf'al'KI< ^sri^R'STI^T i.e. after two years and of agreement whereas sale deed was to be got as to when did the plaintiff [I & 2 to get the suit land and po^session of the suit land was ought to have got the same jdone by her. i|ection 20 of the Specific Relief Act, performance is discretionary and telief merely because it is lawful to do (o refuse specific performance should judicial principles. in the present fevidence on record to show that the XI-HC-78 an^T^rf^iR; tW3n^Tstl*1 3s? -^ww^, t?Tflti'i<o, f»fdi'yy< ^^ m^^ii ai*TT<^ WT 200 3ll^l tiat»i(yii^Gi^iiT) BTOTW Hf?tT'aTI^T plaintiff had the necessary funds defendants within one year from| The plaintiff did not enter the witf to why the plaintiff served a no< i.07.2000 i.e. after two year^ agreement whereas under th| registered sale deed was got to witness Jayantilal P.W.1 did possession of the suit lands agreement totally false. The also goes to show that the 4 consideration to be paid could plaintiff to show when did sh( defendants No.1 & 2 to get the one year of the agreement. No| the plaintiff. In view of the afoi|i agreement with the reasons gh/t Judge, Raipurfor refusing the reli^ withess giv^n chiii'ri.sfi-) ^i^<-iyii:te^)'<r«i'wi< ^STf^lTSn^T fo pay the remaining consideration to the |the date of agreement i.e. 25.03.1998. box. No explanation was given as |ice upon the defendants as late as on and three months from the date of ^ agreement dated 25.03.1998 the [be executed within one year. The sole state that the plaintiff was put in rendering condition No.6 of the of measurement and demarcation |rea of land agreed to be sold and ly. No specific evidence was led by the or her husband Jayantilal ask the lit land measured and demarcated within independent witness was examined by esaid circumstances, 1 am in complete by the teamed 9 Additional District sf of specific performance of contract. riot th|ereby coridition va|ry sitit P.T.O. XI-HC-78 31l1?r^iTR-<i«b trarsn^rgiiii; 3ST '<ll'Mlc1'M, ®Tnu'|tf,?s|i-||yi^< *11<KTT sbMlch ^[ 200 3ii^<i 4a<*> (liclf^c|<^T) ?;RITW;Hl^(T3n^T - 6 9. In the light of the afores evidence led by the plaintiff not the part of the plaintiff to perform one year from the date of the as that the defendants No.1 & 2 h; lands to the defendant No.4 throi considered opinion that performa|ice some hardship on the defendant non-performance would involve impugned judgment and decree r^ dated 25.03.1998 is ttius implscc. interference. 10. In this view of the matterf, Order 1 Rule 10 C.P.C. for imple^ Sharmawho atong with the defer^ defendants No.1 & 2 as also the ^ the relief of re-conveyance of t|h deserve to be dismissed. ^rafeN^WRif^'fe^l iRiwii ^aTf^iTan^r ^iid circumstances and the nature of psclosing readiness and willingness on (er part of the contract within a period of jreement and also considering the fact |ve sold the suit land along with other Igh a registered sate deed, 1 am of the of the contract now would involve which he did not foresee whereas its 10 such hardship on the plaintiff. The ifusing specific performance of contract >le and does not call for any implsccab application I.A.No.478 of 2007 under ding Narayan Das and Smt. Mithila Devi iant No.4 had purchased lands from the pplication I.A.No.479 of 2007 for adding ie sale deed in favour of the plaintiff P.T.O. XI-HC-78 3ST "Hl^ld<), ®Tf|<r|'|fi,R|diylj,< *11+1CTT sb^l* ^ 200 3<1^1 4a<ft (l{cli^c|^£T) ^d^T^irR^icb (raT31^T3?fIT5R s^iTWtifgirsn^r -y-l wifepft^T inwit'ifteA ifSfOTt /• ^srf^sn^T 11. For the foregoing reasons, 1|his appeal being devoid of any merit is dismissed at the stage of admissi^n. I.A.No. 478 of 2(K)7 and I.A.No.479 of 2007 also stand dismissed. Th^re shall be no order as to costs. Sd/- Dilip Raosaheb Deshmukh Judge ^P^ttWC P.T.O. ^