My CD BILASPUR $i§m£$ :EWEE SLA.N0. 1 i} 2004 / KEJAURAM SON OF SHRI GUHARI KALAR, AGED ABOUT 56 YEARS, AGRICULTURIST, > RESIDENT OF VILLAGE KHAMHARIYA, TAH. SAAJA, DISTT. DURG (CHHATTISGARH) 4 VERSUS RANIYA BAI, WIDow OF LATE MANOHARLAL AGRAWAL, AGED ABOUT 53 YEARS, OCCUPATION '— AGRICULTURIST, RESIDENT OF VILALGE KHAMHARIYA, TAH. SAAJA, DISTT. DURG, PRESENT ADDRESS AMEENPARA, RAIPUR, DISTRICT RAIPURCG) O I' IR? . ‘.-' 1 we}; SAHBAN KHAN, AGED ABOUT 48 YEARS, SON OF HASAN KHAN, CASTE-MUSLIM, AGRICULTURIST, VILALGE SAAJA, DISTT. CHHATTISGARH) OCCUPATION RESIDENT OF KHAMHARIYA, TAH . DURG STATE OF MADHYA PRADESH (Now CG.) THROUGH DISTRICT COLLECTOR DURG (CG) G ‘1 w’” SECOND APPEAL UNDER SECTION 100 OP THE CODE OF CIVIL PROCEDURE, 1908 I ( ( W i HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon’ble Shri Justice Prashant Kumar Mishra ”T'"'"" , " . Second Aggeal No.132 of 2004 Kejauram Apgellant versus Raniya Bai and others Respondents 4V- _ Present Shn P P Sahu counsel for the appellant Shrl sudhlr Verma counsel for respondent No 2 Shrl Sumlt Verma Panel Lawyer for the State/respondent No 3 None appears for respondent No 1r i Second Appeal under Section 100 of the Code of Civil Procedure ORAL ORDER (Passed on 5t“ January, 201 0) Heard on admission. 2 The unsuccessful plaintiff in both the Courtsdaelow In a surt for lspecfc performance of contract has preferred this second appeal Eassailmg the gudgment and decree dated 19-1 1-2003 passed by the 2““ lAdd‘itional District Judge (F.T.C.), Bemetara, District Durg in CiVil lAppeal No.11-A/2003 affirming the judgment, and decree dated 26-4: 2000 passed by the 1“ Civil Judge Class-ll, Bemetara in Civil Suit l \ f No.2—A/98. 13 The facts, in Brief, are that the plaintiff/appellant Keiauram and defendant/respondent No.1 r Raniya Bai entered into an agreement on 27-2-1986 for sale of 5.24 acres of land bearing Khasra No.45, situated 1 at Village Guwara, Tahsil Saja, District Durg. The agreement was for execution of the-sale—deed in faVour of the plaintiff within a year and acjcording to the plaintiff the defendant No.1 has received a ,sum of Ré.2,500/- out of the total sale consideration of Rs.5,500/- on the date of execution of the agreement. On 14—11—1986, the defendant No.1 executed a saie-deed in favour of the defendant No.2 for the suit land fo a sum of Rs.23,000/-. According to the plaintiff, he is entitled for a decree for specific performance of the contract because he was always raady and willing to perform his part of the contract and the sale-deed efreguted by the defendant No.1 in favour of the defendant No.2 was t not bona fide inasmuch‘as the defendant No.2 was already aware of the existence of contract in between himself and the defendant No.1. Tthe defendant No.1 in her written statement, denied to have signed the agreement and receivmg the advance amount he defendant No 2 has taken a plea of being a bona fide purchaser for value paid [ a 4. On appreciation of evidence, the trial Court found that the agreement was duly executed between the parties and the advance amount of Rs.2,500!- was already paid to the defendant No.1, \" however, after finding that the defendant No.2 is a bona fide purchaser andthat there is a difference in price amount also in between the agreement and the subsequent sale-deed, the trial Court refused to exercise discretion to grant a decree of specific performance of contract. The first appellate Court has afnrmed the judgment and decree passed by the trial Court. l t .s.‘\ ‘ 5 Shri P.P.Sahu, learned counsel for the appellant has urged that the Courts below have not exercised the discretion in a proper manner, therefore, a substantial question of law arises with regard to the xercise of power under Section 20 of the Specific Relief Act, 1963 e i (hénceforth ‘the Act 1963) by the tnal Court which has been affrmed y the frst appellate Court Learned counsel for the appellant submits that as per Explanation 1 to sub-section (2) of Section 20 of the Act, 1963, mere inadequacy of consideration should'not be a ground to refuse issuance of a decree of specific performance. Upon perusal of e the record, it appears that it is not mere inadequacy of consideration but the status of the parties like the defendant No.1 being a widow, exEcution of subsequent‘ sale-deed in favour of the bona tide purchaser, the plaintiff was already in possession of the suit land for las:t 20' years as a lessee of the defendant No.1 and was cultivating the 1 land are to be seen to determine as to whether in the conspectus of obtaining factual matrix the exercise of discretion was proper or not. This Court is of the opinion that in view of the above mentioned evidence in the case, the exercise of discretion by the Courts below was justined. Learned counsel fOr the appellant further submits that tlte present is not a case where the plaintiff was in {dominant position and therefore clause (a) of sub-section (2) of Section 20 of the Act, 1963 Is not attracted ln the opinion of this Court the said argument has no force inasmuch as it is not the only circumstance available in the case but there are other evidence regarding the status of the parties etc. which makes the, judgment and decree passed by the Courts belowto be based on sound reasoning. ‘ , 6 Shri Sudhir C'Verma, learned counsel for the defendant/respondent No.2, Who has entered appearance in pursuance to the notice issued by this Court vide order dated 11-1- 2005, has opposed the arguments raised by learned counsel for the i . Gopal ,4# 1 % ap¢ellant by submitting that there is no error of jurisdiction in the exTrcise of discretion by the Courts below, therefore, no substantial question of law arises and the appeai deserves to be dismissed. 7. it is not disputed that the defendant/respondent No.1 was a wi ow and had parted with the property for last 20 years in favour of the piaintiff by giving the land on tease (Adhiya) as found by the trial Cofurt while determining issue No.4. lt has also been found by the trial Court and affirmed by the first appellate Court that the defendant No.2 ‘s la bona fide purchaser. The agreement was executed on 27-2-1986 i lu- . and the subsequent sale-deed was executed on 14-11 1986 Looking tot the fact that the defendant N01 was a wrdow and there is substantial difference in the amount of sale-consideration Within a period of 9 months, this Court does not hnd that the exercise of discretion by the trial Court which has been affirmed by the hrst appellate Court was not done on sound or reasonable judicial prinCIple The learned Courts below have exerCIsed the discretion in the facts and circumstances of the case and this Court is of the opinion that there is no error in the manner and approach in which the Courts below have exercised the discretion in the present matter. No substantial question of law arises in this appeal for determination. The appeal fails and is hereby dismissed at the admission stage itself. i / A ' sci/— ‘ Prash‘ant Kumar Mishra ‘’“r....,.>.e_,w f ,k,.,,.,,,,.,. Judgewww “7/ ~ - a \ i i I/w‘“ ‘ na