^.f-l^ lS-T@J^®LGomi^F^um5^@-^-^S!^£^-^CHHffli§G^m SBCOND_APPSAL. Np,4?^ S^@1&1 gr APPELLANTS ^LAINIIPFS ^<,.;.>ES^-1 ^e4"l^&^" ^..•<*"**' BBSPONDEffi'S ^. Zogesh Kumar son of Burajmal, aged about $0 years, resideni of Gadhiyari, Tah: & Dis-b: Raipur (C.G). of Yogesh Kumar, resldent of :Raipur (C.G). Versus ^EFEHDANTS ). Smt.Noona Bai, widow of late Bhagela Satnami, aged about ^O years. i. Siyaram, son of Bhagela Satnami, aged about 30 years. ^- Shiv Kumar,son of Bhagela Satnami, .. aged about 23 years* j+. Shiv Kumari, daughter of Bhagela Satnami, aged about 22 years. ?. Chandrika Prasad, son of B'nagela ^ Satnami, aged about 21 years." 6. Parabhe, son of Bhukau Sa-bnami, ^ aged about 60 years. All residents of Gud]3iyari,Baipur. Tali. & Dist: Raipur (C.G) 7. State of Ghhattisgarh. w^' SBiMD-A^^L-2^-JOQ^f^iejCO^_OF^IlIlL;PROGE]3UE® Sult and First Appeal valued at Bs. JI-OC)f - Court Fees Rs . '}1SJ — Second Appeal valued at Bs. ^J-06f Court Fees Rs* ' Jl^l \^ 26 / h•r HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 490 of 2004 YogeshKumar &another Versus Smt. Noon Bai & others POST FOR JUDGMENT ON / o ' JULY 2006 Sd/- DHIRENDRA MISHRA Judge —-1 i •' ..' -I ^ HIGH COURT OF CHHATTISGARH AT BILASPUR SECOND APPEAL N0.490/2004 APPELLANTS PLAINTIFFS YOGESH KUMAR AND ANOTHER VERSUS RESPONDENTS DEFENDANTS SMT. NOONA BAI AND OTHERS. SHRI V.D. BAJPAI LEARNED SENIOR COUNSEL FOR THE APPELLANTS. s.' JUDGMENT (Delivered on 10-07-2006) Dhirendra Mishra. J The appellants have preferred this Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 16.8.2004 passedby 11th Additional District Judge (FTC) Raipur in Civil Appeal No. 19-A/2004 arising out of the judgment and decree dated 17.9.1997 passed by Civil Judge Class-ll Raipur in Civil Suit No. 249- A/1995 proposing the following substantial questions of law for adjudication: SUBSTANTIAL QUESTIONS OF LAW (i)- Whether the judgment and decree passed by the Courts below is perverse and based on improper appreciation of evidence? (ii>- Whether the finding of the judgment of the Court below are infirm jn nature and whether valuable evidence pertaining to the title of the suit property has been ignored by the courts below? — —~~~^^ ^ '\ (iii)- Whether according to Section 53 ofthe Indian Contract Act, 1872, the decree passed in favour ofthe appeflants will be applicabte on the other parties those are creatlng the interest in the suit premises? (iv)-Whether Uie lower appellate court on the basis of evidence on record was right in dismissing ttie suit of the plaintiffs and whether the appellate court was right not to allowing the appeal ofthe appellants? (v)- Any other substantial question of law to be formulated at the time of motion hearing or admission? 2. Case of the plaintiffe before the trial Court was that on 24.11.1984 an agreementwas entered into between the plaintiff No.1 and ddFendants No. 1 to 5 with the consent of defendant No.6 with respect to the tend bearing Khasra No. 987/4 Patwari Halka No. 107, area 27 decimal situated Sn village Gudhiyari for a consideratlon at the rate of Rs. 3000/- per acre and advance of Rs. SOOI- was paid by plaintiff No.1 to defendants 1 to 5. As per the ^iid agreement the defendants were to obtain No Objection Certificate from the ofRce of Land Ceiling ^ittiority and within one montti of obtaining the sakl No Objection Certfficate sate deed was to be executed either in the name of plaintHf No.1 or in the name of any ottier pereon nominated by hlm. Thereafter, fcirther payments were made to defendants No.1 and 2. No ObjecUon Certificate was-obtained by plaintiff No.1 on 28.6.1988. However, ttie defendants refused to execute sate deed after obtaining remaining consideration of Rs. 4,700/- and in the aforesaid circumstanees the suit was filed. Defendant No.6 in his wrftten statement denied the execution of the agreement and slated ^iat as he was not the party te the agreement he was not bound by it because he had not received any consideration from the plaintiffe in lieu ofthe land. Defendant No.6 Turther stated that he was never called upon by th®plaintiff No.1 to execute the sate deed. The land in questton is a precious as per the market value. According to defendant No.6, he never appointed defendants No. 1 and 2 as attorney for the purpose of execution of the agreement. Defendants No. 3 to 5 were minor and ttie suit was barred •-L- l^g <-^ \ 3. by law of timitation. Defendants No. 2, 4 and 5 in their written statement denied that they ever gave consent for the execution of the sale deed. Since, defendants No. 3 to 5 were minor there was no legal necessity to fransfer their land. The land in question fe the ancestral property and defendants have no legal right to execute the agreement for sale and therefore, the agreement is illegal and void. On the basis of the pteadings of the respectwe i^irties the trial Court framed ftie issues and after recording the evidence dismissed the suft by recording a finding ttiat ttie agreement dated 24.11.1984 was executed by defendants No. 1 to 5 but defendant No.6 had not entered irto the said agreement. The plaintiffs had paid a consideration of Rs. 3,400/- and was ready and willing to perform his part of contract. Defendant No.6 had not appointed defendants No. 1 and 2 as attorney to execute the agreement and he had in fact refused to sell Ihe property vide his notice dated 3.9.1986. Though defendants No. 3 to 5were minor, they did not challenge ttie agreement in question after attaining rr»jority during the pendency of the suit. The suit was not barred by law of limitatton and since the agreemented pro|»rtywas the joint property of defendants No. 1 to 5, defendant No.6 and others as per the revenue records and the same had not been partltioned and there was no consent of the holdere to sell the property, the same has not been sold. The agreement was not executed by defendants No.1 and 2as Karta of the family for the benefit of the suit property or legat necessity and as such the ^endants No. 1 to 5 had no authority to sell the sutt land and therefore, the plaintiffs cannot get the decree of specific performance of the agreement of Ex. P-1 and thus the suit was dismissed. The appeal preferred by the appellante/plaintiffe against ttie Judgment and decree passed by the trial Court has also been dismissed. Learned counsel for the appellants submits that botti the courts below after recording a finding that defendants No. 1 to 5 enterwl into an agreement to setl the suit land after obtaining a consteleratlon and ttie plaintiff was ready and willing to perform his part <rf the contract, ought to have decreed the suit at least to the extent of ttieir share in ttie 'A- \, .-< ^:.. property and therefore Vhe questions of law as described above arise for consideration. In support ofthe argument reliance is placed on the judgments of Hon'ble Supreme Court in the matter of Sardar Sinah Vs. Smt Krishna Devl and anoflier reported in AtR 1986 SC 491. In the matter of Kartar Sinah Vs. Hariindar Sinah and others reported in AIR 1990 SC 854 and in the matter of Surinder Sinah Vs. Kapoor Sinah (dead) throuah LRs and others reported in (200516 SCC 142. He further relied on the judgment of the M.P. High Court jn the matter of Gurudinomal Vs. Dolafram reported in MPWN.208. The courts below have dismissed the suit by recording a finding that the land in question was jointly recwded in the name of defendants No. 1 to 6 and others as per the revenue record and the plaintiff has failed to establish that the agreement was executed by defen^ints No. 1 to 5 as Karta of the joint family for the benefit of the property or for tegal necessity ofthe family and the property in question has not been partitioned between the members and in the aforesaid eircumstances the defendants No. 1 & 2 had no tegal authorify to execute the agreement. In the matter of Surinder Singh (supra) the Supreme Court on the basis of admitted facts that the appetlant and his sister had equal share in the property, upheld the judgment of the Hjgh Court that the decree for Specific Performance could be granted in favour of ttie respondents in respect of the share of the appetlarrt subject to his right to apply for partition of the property for getting his share ctemarcated. In the matter of Kartar Singh (supra) also on the basis of admitted facte that the defendant having share in the property contraeted to sell the whole property i.e. his share and that of his sister. In ttiese circumstances since the sister's share was separate and severabte from each other there was a valid contract with r^pondent in respect of his share in the properiy. In ttie matter of Gurudinomal (supra) ttie share of the pereons to the agreement has been well defined and in the aforesaid Gircumstances ttie suit for Specific Performance in respect of the share of the property of ttie defendant was decreed. <. However, in the instant case the property in question is jointly recorded in the name of defendants No. 1 to 6 and othere, there is neither any pleading nor any ©videnceof partition/share of defendante No. 1 & 2 in the said property, there is a concurrent finding of ftact that the land in question was sold by defendants No. 1 & 2 not for the benefit of the property or tegal necessity and in tfie absence of well defined share <rf defendants No.1 & 2 in the property they had no legal authorify to transfer the land. The above finding is a finding of fact concurrently recorded by both the courts betow. 6. In view of the aforesaid discussion this Court of the view that no substantial question of law as described above, arises for adjudication ofthisappeal. 7. In the resutt ttie appeal is devoid of substepce and the same is liabte to be dismissed. It is accordingly dismissed s®ttie motifyi^ge itself. ^ \ -; Sd/- DHKENDRA MISHRA Judge ^ -1 r-~-, .