Em IN THE HIGH COURT OF GHH&TISGARH AT: BILASPUR $i’ngh @mé‘fi F.A.No. IZE; 0f2008 Suitygyvas valued at Rs. 1, 00,000.00 Appeal is valued at Rs. 100000.00 Court Fees was paid Rs. 11,800.00. Court Fees is affixed Rs. 11,800.00. APPELLANT: Govind Singh, aged 40 years, son of Shri Ramdewan alias Ramdeo, resident of village (b ......Nw Karwa (Tenganmada), tahsil Kota, district Bilaspur .. .. N11 (C-G-) @etendtmt/vendor} VERSUS RESPONDENT3: 1. Manmati, aged 76 years, wife of late Shri [Q S Purshottam Singh, resident of village Tenganmada, tahsil Kota, district Bilaspur y _,.M . awl %%$$W I I y? (C.G.) Qlaintig/vendee) an f7 K w 2. State of Chhattisgarh, through the District ‘ Collector, Bilaspur, district Bilaspur (C.G.). (EeZendant/Forma1 gargl M FIR3T APPEAL UNDER SECTION 96 READ N WITH ORDER 41 RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908. Against the judgment and original decree dated 31 3 2008 passed by the Second Additional District Judge Bilaspur in CiViI Suit No 1- A/2007 in case of Manmati versus Govmd Singh & another I The appellant named above begs to tile this appeal as under: — HIGH COURT DFMCHHATT!SGARH AT BILASPUR M sinqie Bench: Hon’bie Shri Justice Prashant Kumar Mishra First Appeal No. 125 9f. 2003 Govind Singh Vexsgs Manmati and another JgQ§M§§T Post for 247104010. Sd/- Prasham kumar Mishra Judge ‘13 1’1G—2C1O‘” HIGH CQURT OF CHHATTISGARH AT BILA$PUR Sinqle Bench: Hon’hle shri Justice Prashant Kumar Mishra FirSt W‘ N0» 135 I 2‘)” APPELLANT Govind Singh Versus RESPONDENT$ Manmati and another Shri Somnath Vanna, caunsei for the appeuant. Shri Ni Asgar, counse! for respondent No.1 . Shri \fmod Tekam, Pane! Lawyer for the Statelrespondent No.2. APPEAL UNDER $ECTION 96 READ WITH ORDER 41 RULE 1 OF THE CODE OF CNIL PROCEDURE JUDGMENT ( M Jammy The appeiiantfdefendant of this fir$t appea! under Section 96 of C.P.C., is suffering a decree for specrnc perfonnance with respect to rands admeasuring 1.33 acres bearing Khasra No. 319“ at viilage Karwa (Tenganmada), Tahsi! ~ Kota, District - Biiaspur. (2) Piaintiii’e caee, in short, is that the defendant No.1 proposed and agreed to sale the suit land for Rs.1.00,000/- to the plaintiff. He accepted Rs.15,000!» as advance however, he did not execute the sale-deed. He again received Rs.80,000/— from the plaintiff and promised to execute the sale-deed after receiving the balance amount of Rs.5,000/- at the time of registration of sale—deed. An agreement was executed on 26-12-2005. wherein the defendant admitted to have receive Rs.90,000I-. On his avoidance to execute the saledeed the piaintiff served legal notice dated 12-07-2006. In the Panchayat meeting, the defendant admitted to have handed over possession of the land to the plaintiff and sought time to execute the sale-deed, however subsequently he lodged a false report that the piaintiff is illegaliy occupying the land. The Police did not act upon the report as, on anquiry it was found to be fa‘se. The p‘aintiff pieaded that he was aways ready and wining to perfonn his part of the contract, however the defendant is not executing the sale-deed. hence the suit. (3) The defendant No.1, in his wrttten statement, averted that he had earlier soid 0.03 acres of land bearing Khaera No. 319/7 to the ptaintiff’s son Hempat fat Rs.20,GOOI.. However. he denied to have executed the present agreement as aiso to have received the amount of Rs.95,000I-. The defendant No.1 admitted that he obtained ioan of Rs.15,000/— from the ptaintitf's husband in 1997 and handed over posseeeion of the suit iand with further averment that tt was agreed between the parties that after repayment of loan the ptaintiff shalt hand over possession to the defendant No.1. tt was further stated that in the year 2005 the defendant No.1 tried to repay the amount of Rs.15,000i- and requested the ptaintiff to vacate the possession however, the ptaintiff did not accept the amount on which a Panchayat meeting was convened by defendant No.1. The piaintiff thereafter vacated his possession and that no agreement was ever executed b him, as aileged y in the plaint. (4) The trial Court has found that the execution of the agreement is proved, payment of Rs.15.000l— and Rs.80,0G0/' is also proved. The trial Court white recording finding on issues No.5 8: 6 came to the oonotusion that the defendant No.1 was avoiding to executing the safe-deed and therefore the plaintiff is entitied to a decree for specific performance. (5) Shri Somnath Verma, counsel appearing for the appeilant has argued that the agreement is forged, no payment was ever made by the piaintiff to the defendant No.1, in the iegai notice the execution of agreement has not been stated and that the second attesting witness has not been examined. / -%,V therefore the triaE Cuurt should have heid that the plaintiff has not proved his Cgse . (6) Per contra, Shri Ni Asgar, {earned counsek appearing for respondent No.1 has argued that execution of the agreement and payment of the amount by the plaintiff to the defendant No.1 has been duly proved. He would further submit that the ptaintiff‘sown witnesses have admitted the piaintiff‘s case of handing over possession of the iand by the defendant No.1 and the events transpired in the Panchayat meeting, He woutd atso submit that after death of ptaintiff's husband the defendant has taken a somersault and is avoiding execution of sale-deed. (7) Ptatnttft has examined hersetf as PW—1, Dharm Pratap Singh PW—2, Ram Prasad Jaiswat PW-3. Nemsingh PW-4, Kaiam Singh PW.5, Smt. Jamuna Kanwar PW-6, whereas the defendant examined himsetf as DW-t, Ramchandra DW-Z and Mansingh DW-3. (8) The plaintiff has proved the agreement dated 26-12-2005 (EXP/1). PW-3 Ram Prasad Jaiswat is the scribe of Ex.P/1 and PW-4 Nemsingh is the attesting witness of the EXP“. PW-4 Nemsingh has stated that the defendant Govind singh had caiied him to the house of plaintiff for execution of the agreement; he has denied that EXPH was eartier written and his signature was obtained tater on; he has also denied that the signature of defendant Govind Singh on ExPIt is forged. (9) Defendant Govind Singh has admitted in his statement that the ptaintiff is in possession of the tand for last so many years and that he had moved application before the Tahsitdar for recovery of possession. He also admits to have received the legal notices and that he has not reptied to the notices and that he has not todged any report against the plaintiff regarding forgery of his 'x/ mwth vamx -24’ signature when the said agreement EXPM wa$ shown to the Poke on his application against piaintiff for iiiegai possession of the iand. (1 0) DW-Z Ramchandra examined by the defendant is an important witness wha had not filed his amdavit under Order 16 Ruie 4 of C.P.C. and was summoned by the Court as he was cited as a witness by the defendant. This witness has stated in his examination-in-chief that a Panchayat meeting was convened in the house of Mansingh Patel. in the said meeting the defendant was asked to execute a sale-deed as he has received the amount. The defendant was not abie to reply before the Panchas as to what amount he has received and he desired that husband of the piaintifi wiii be abie to say as to what amount he has paid and on this Purshottam, piaintiff's husband, hrought out some papers in which it was mentioned that defendant has received Rs.95,000I-. When defendant was confronted by the persons present in the meeting he kept quiet and after 10—15 minutes he admitted that he has received the amount and that on the asking of the viiiagers he is ready to execute the sale-deed. in the cross-examination he admided that the piaintiff is in possession of the suit land. (1 1) Defendant's witness Mansingh DW-3 also admitted that the piaintiff is in possession of the suit land. it was specilicaiiy stated by this witness that in the said meeting it was never agreed by the plaintiff's husband Purshottam that after receiving Rs.15,000l— from the plaintiff he woutd vacate possession. Thus, this witness is making statement against the defendant‘s evennent that in the meeting Purshottam agreed to vacate the possession after receiving Rs.15,000I-. DW-3 Mansingh also admits that Katam Singh PW-5 was present in the meeting. This witness. PW-5 Kalam Singh examined by the plaintiff has proved the Panchayat meeting in which the defendant was /present and agreed to execute the saiedeed. 4* -6” (12) From the above extract of the statement made by the defendant‘s witnesses it is funy e3tablished that the defendant No.1 had agreed to execute the saw-deed by accepting the baiance amount of Rs.5,000!- and have executed an agreement EXP“. (t 3) Thus, the nnding recorded by the trial Court in favour of ptaintiff about payment of amount and execution of agteement and avoidance of execution of sate-deed by the defendant No.1 is borne out from the evidence on record and there is absotutety no titegattty or perversity in the findings recorded by the triat Court. (14) In the resutt, this Court does not find any substance in this appeat which deserves to be and is hereby dismissed. The judgment and decree passed by the trial Court is afttrmed. Thereshall be no order as to costs. A decree be drawn-up accordingty. 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