fel08 ^' HIGHCOURT OF CHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J. First Abpeal No.119 of 2004 Dolamani Patel versus Dalim Kunwar and others JUDGMENT Postfor pronouncemeht ofjudgment %-09-2008 Sdf- Dilip Raosaheb Deshmukh Judge /y,,-^'s^^ ~% r €.___z. i. ^^?7T^^^^te^ ^ ~a s ^Sl.. ../'^' .^ ^^"'.-"7-^'" ^^ HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J. First Appeal No.119 of 2004 Appellant Plaintiff versus Respondents Defendants ;!ii:.:|^i» Dolamani Patel, S/o Nandlal Patel. aged about 45 years, Occupation: Cultivation, R/o Village Kosamdih, Patwari Halka No.40, Tehsil Sarangarh, District Raigarh (CG) Dalim Kunwar, D/o Late Nandlal Patel, aged about 50 years, R/o Kosamdih, Tehsil Sarangarh, District Raigarh (CG) Presently R/o Village Birdupali, Tehsil Batli, P.S. Ammabhouna, District Bargarh (Orissa) Smt Manju Panda, W/o Parmanand Panda, aged about 30 years, Occupation: Cultivation R/o Village Pevra, P.0. Devgaon, Tehsil Saragaon, District Raigarh (CG) Smt Padmini Panda, W/o Prashant Kumar Panda, aged about 24 years, Occupation: Cultivation, R/o Village Pevra, P.0. Devagaon, Tehsil Saragaon, District Raigarh (CG) State of Chhattisgarh, Through Collector, Raigarh(CG) Memo of appeal under Section 96 of Code of Civil Procedure Present: / Shri H.S.Patel, counselfortheappellant. None appears for respondent No.1. Shri B.D. Badgaiyan, counsel for respondents No.2 & 3. Shri P.R. Patankar, PL forthe State/respondent No.4. JUDGMENT (Passed on this "-*1"1 day of September, 2008] ^:^(' /':;'.-=c^f. '•^- '£;, fr' 1 ^i ^ The appellant/plaintiff is aggrieved by the dismissal of suit vide judgment and decree dated 07.04.2004 passed in civil suit No.7-A/1997 bythe Ist Additional District Judge, Raigarh (CG). •» (2) Admittedly, Dolamani the plaintiff is the son and Gomti, Kanchan Kumari and Dalim Kunwar, the defendant No.1 are the daughters of Nandlal. Execution of document i.e., a registered sale deed of the suit lands measuring in area 10 acres 16 decimals mentioned in Schedule 'B & C' annexed to the plaint (henceforth 'the suit lands') by Nandlal in favour of Dalim Kunwar, the respondent/defendant No.1 is not in dispute. (3) The appellant/plaintiffs suit was founded on the averment that Nandlal had, for providing maintenance to his handicapped daughter Dalim Kunwar, executed a nominal sale deed of the suit lands without consideration on 07.08.1980 in her favour. During his life time, Nandlal was in possession of the suit lands and thereafter the appellant/plaintiff is in possession. DalimKunwar had, on 25.06.1997, orally agreed to execute a sale deed of the suit lands in favour of the plaintiff and to receive Rs.1,00,000/- in lieu of maintenance and had also received an advance of Rs.3,000/-. Execution of thesale deed of the suit lands by Dalim Kunwar in favour of the respondents/defendants No.2 & 3 on 30.06.1997 is thus void. On these premises, the appellant/plaintiff prayed for execution of a registered sale deed of the lands mentioned in Schedule 'B & C' annexed to the plainf-by the respondent/defendant No.1 in his favour. As a consequential relief, it was also prayed that the sale deed executed by the respondent/defendant No.1 in favour of the respondents/defendants No.2 & 3 be declared void. Possession q^a. -_j -./-.':: \s. '••.••^^".s~^ •^ ^ .^9 portion of the land on which a house was situated mentioned in Schedule 'D' which did not form part of the sale deeds dated 30.06.1997 executed by Dalim Kunwar was also claimed. (4) The respondents/defendants No.1 to 3 resisted the suit and pleaded that sale deed executed by Nandlal in favour of Dalim Kunwar for consideration of Rs.10,000/- conferred valid title upon her. Prior to the execution of the abovementioned sale deed the appellant/plaintiff had separated from Nandlal after receiving his share in the property. It was denied that the defendant No.1 had agreed to sell the suit land to the appellant/plaintiff for a consideration of Rs.1,00,000/- and had received Rs.3,000/- as an advance. It was also pleaded that the suit for specific performance ofcontract was not maintainable under Section 17 of the Specific Relief Act. (5) The learned Additional District Judge framed as many as 8 issues. Issue No.7 was regarding maintainability of the suit under Section 17 of the Specific Relief Act. This issue was decided as a preliminary issue, in favour of the appellant/plaintiff on the ground that through the registered sale deed dated 7.8.1980 executed by Nandlal, Dalim Kunwar had prima facie title over the suit lands, and therefore, the suit for specific performance of contract was maintainable. (6) The appellant/plaintiff examined himself and witnesses Kalyan P.W.2 and Ramjilal P.W.3 in support of the plea of agreement by Dalim Kunwar to sell the suit lands for a consideration of Rs.1,00,000/- and to prove that Dalim Kunwar had reoeived Rs.3,000/- from the appellant/plaintiff as advance. Gomti P.W.4, sister of the fig .^••T-- :.i -•' i i.,<j ;!•" 8-ik appellanUplaintiff, was examined to prove that Nandlal had executed a document Ex.P.2 to show that the sale deed Ex.D.1 was nominal. On the other hand, the defendant No.1—Dalim Kunwar examined herself. No evidence was led by the respondents/defendants No.2 & 3. (7) Learned Additional District Judge had, on appreciation of evidence, recorded a finding that the appellant/plaintiff had separated from his father Nandlal prior to the execution of sate deed Ex.D.1 dated 7.8.1980 by Nandlal in favour of Dalim Kunwar. It also held that the appellanVplaintiff had failed to prove that the sale deed Ex.D.1 was nominal being without consideration. It was also held that Dalim Kunwar had acquired title over the suit lands and the house mentioned in Schedule 'D' to the plaint through sale deed Ex.D.1. It was further held that the appellant/plaintiff had failed to prove that Dalim Kunwar had agreed to sell the suit lands to him for a consideration of Rs.1,00,000/-. On these findings, the learned Additional District Judge dismissed the suit. (8) Arguments of Shri H.S.Patel, learned counsel for the appellant, Shri B.D.Badgaiyan, learned counsel for the respondents No.2 & 3 and Shri P.R.Patankar, learned P.L. for the Statewere heard at length. Record is perused. While it was pleaded by the appellant/plaintiff that the sale deed dated 7.8.1980 executed by Nandlal in favour of Dalim Kunwar was nominal being without consideration and therefore did not confer any title on Dalim Kunwar, a relief for specific performance of contract was also sought against the respond6nVdefendant No.1 on the averment that she had agreed to sell the suit land to the appellanVplaintiff for a consideration of Rs.1,00,000/- after receiving advance of Rs.3,000/-. Both the pleas were highly inconsistent pleas because if the sale deed dated 7.8.198Q_ —j <; .Wi^ /4:" ^"""'•-^ '^. i &^yj %,y-!mse'^ i.:iia-,.. y^. was nominal, Dalim Kunwar, respondenVdefendant No.1 would not have acquired any title over the suit lands, and therefore, upon arriving at such a finding a decree for specific performance of contract for selling the suit tands to the appellant/plaintiff could not be granted against the respondent/defendant No.1. (9) So far as the testimony of Gomti P.W.4 regarding document Ex.P.2 executed by Nandlal is concerned, this was introduced in the plaint by an amendment after institution of the suit. Gomti P.W.4 stated that she never informed the appellant/plaintiff Dolamani. about the execution of the document Ex.P.2 by Nandlal. She also stated that she had delivered the document Ex.P.2 to Dolamani 5 years prior to the institution of the suit. No reason has been assigned by the appellanVplaintiff Dolamani for suppressing the document at the time of institution of the suit. The said document Ex.P.2 was also not put to Dalim Kunwar, respondent/defendant No.1 during cross-examination. The learned Additional District Judge has, therefore, rightly recorded a finding that the said document Ex.P.2 was a document concocted after the institution of the suit. In paragraph 8, the learned Additional District Judge has given cogent reasons for disbelieving the testimony of Gomti P.W.4 and not relying on the said document Ex.P.2. (10) The well reasoned finding recorded by the learned Additional District Jydge that the appellant/plaintiff has failed to establish that the sale deed dated 7.8.1980 was*nominal being without consideration is also based on proper appreciation of evidence led by the parties. If the sale deed dated 7.8.1980 was nominal being without consideration and the appellant/plaintiff was in possession ofthe suit land, he would not have '•~--i 'f I l\ - "~?'~ '-^fe..- K-l-tdl!'' cared to pay any sum as advance to Dalim Kunwar for purchasing these lands for Rs.1,00,000/-. During the course of the arguments, learned counsel for the appellant/plaintiff has failed to create any dent in the finding arrived at by the learned Additional District Judge that the sale deed dated 7.8.1980 executed by Nandlal in favour of Dalim Kunwar conferred valid title on Dalim Kunwar. Although in paragraph 9 of the plaint, it was pleaded that in lieu of payment of Rs.1,00,0007- towards amount of maintenance, Dalim Kunwar had agreed to execute a sale deed in favour of the appellant/plaintiff, yet in his testimony paragraph 4, the appellant/plaintiff Dolamani has projected the transaction as an outright sale by Dalim Kunwar in his favour. Although he asserted in paragraph 4 that he had assured Dalim Kunwar that he would deposit the entire amount of Rs.1,00,0007- in the Bank, yet he has admitted in paragraph 17 that he did not make any such deposit. So far as the evidence led by the appellant/plaintiff regarding an oral agreement to sell the suit lands by Dalim Kunwar in his favour is concerned, 1 fully concur with the reasoning and the finding recorded by the learned Additional District Judge that the appellanVplaintiff had failed to prove that any such oral agreement was entered into by Dalim Kunwar. (11) In the result, l find no merit in this appeal which is accordingly dismissed. There shall be no order as to costs. Sdl- Dilip Raosaheb Deshmukh Judge ''-j