m !\ ^ IN THE HIGH COURT OF JUDICATURE CHHATTISGARH AT BILASPUR SECOND APPEAL NO.U^f / 2005 ^ Appellant /Plaintiff /Subhash ChandraAgrawal, S/o Ganesh / Ram Agrawal, Occupation - Business, R/o Dabhra Road, Kharsia, Tahsil Kharsia, District-Raigarh(CG) Versus Respondents /Defendants I/' ^ ..^•' 2. ^c ^1'^ ^^/^•;-^' <?.. ^^ ' ^' ^z,..-^ >0'*' ^ ^'l***' ^^L^ ^fta' Ganeshram Agrawal, S/o Ramkumar Agrawal, Attorney - Meeradevi Agrawal. Smt. Meeradevi Agrawal, W/o Ganeshram Agrawal (Both R/o Dabhra Road, Kharsia, Tahsil Kharsia, District- Raigarh (CG) \^"' SECOND APPEAL U/S 100 OF THE CODE OF CIVIL PROCEDURE ^j3^^^^%;^i^^^^;^^ Appe!!ant/ Plaintiff HIGH COURT OF CHHATTESGARH : BSLASPUR Second Appeal Ho. 441 of 2005 Subhash Chandra Agrawal Respondents/ -Defendasits Vs. Ganeshram Agrawal arsd another. AppejJa.nt/PSalntJff by Shri Anup .&4ajurrgdar, Adyocate. •ORDER (Passedono',912/05) Dhirendra l^ishra. J // /< This Is the plaintiffs second appea! agalnst-the impugned judgment and decree dated 02.08.2005 passed by the Searned First Additlona! District Judge, Raigarh in Civi! Appeal No.31-A/2Q04, whereby the order dated 30.10.2004 passed in Civll Suit No. 183-A/2002 by the Addltions.l Clvi! Judge, Ciass-i, Ralgarh dismisslng the suit of the piaintiff, has been confirmed and the appeal has been dismissed. Brief facts of the case are that the piaintiff fiied a civii suit for declaratlon and perpetuai injunction with the averment that he had entered into an agreement with defendant No.1 to purchase the suit shop on 28.05.1998. As per agreement the dimension of the shop was fixed as 11 x 18.09 square feet with a height of 14 feet. !t was further agreed that the pialntiff shail temporary occupy shop No.1 without payment of any rent tii! construction of shop No.4 was over and wlthin one month after the construction, he shali be shiftlng to shop No.4. The shop was to be constructed by November 1998. However, after comp!etion the pialntiff found that the length of the shop No.4 was 18 feet lr§ of 18.09 feet as agreed. When this fact was, pointed out, the defendants promised to rectify the defect in the year 1999 and after completion of the construction, shal! execute a saie deed after obtaining the baiance amount of i|!:l i e. 'i -. i Rs.1,00,000/-. Thereafterthe plaintiffdid notcomplywith the agreement andisinsistingthat'heshouldoccupytheshopihitspresentconditionA tegal notice was sejnt bythe plaintiff to defend^^ execute a sale dee^ of the suit shop as agreed|but as he did notcomply with the terms of the agreement, the above suitwasfiled. The defendants det;iied that shop No.4 has not jbeen constructed as per agreement and further submitted that defendant No.1 was ready and wiling t6 execute t^ie sale deed as per agreement and they had sent a registerednotice4J 5.02.1999 totheplaintiff informinghim thatifhe^^^^i not obtainjng the possession ofshop No.4 as agreed, if shall be presumed that he is not following the agreement dated 28.05.1998 andaccordingjy, the agreement shatl be terminated and in that event, the defendant shall be free totransfer shop No.4 to some other person. On the basis of the pleadings of the respectiVe parties, the trial Court framed issues and yismissed the sujt holding that shop No. 4 situated over ptot No.409/3 and 417/2 wasconstructed as per agreement and in fact the plaintiff was not ^^iIling to^^^^^^^c^^ agreement and hej $s not in legal ppssession pf shop No.1 and that the shopinquestionhasfa^enpropertyvalued. The appeat prefeijred by the plaintifF has been alsodismissed by the appellate Court and the fmdingsofthe trial Courtwas upheld. Leamed counsel for the appellant/plaintiff submlts that findings of both the Courts below are ibased on the report submitted by the Commissjoner. However, since the report submitted by the Commissioner does not answer the factual dispute regarding length of the suit shop raised by the plaintiff, the Courts below have committed illegality by relying upon the Commissioner's r^port and in dismissing the suit of the plaintiff. Leamed counsei further argues that shop No. 4 has been constructed by encroaching the jNuzul plot whereupon he moved an application for amending his plaintto incorporate a pieading^^^^ constructsd over | Nuzul plot which is in violation of the agreement. However, thesame has been rejected onthe groundthatthe plaintiffhas -Y not annexed any document to substantiate hls ailegations in the amendment appllcation. 7. I have heard learned counsel for the appeliant/plaintiff. 8. Both the Courts beiov^ cn the of evidence on record and further on the basis of report ofthe Comtnlssjoner appointed by the Court, have arrived at the conciusion that shop Mo. 4 has been constructed as per agreement between the partles and the submission of the plaintl'if that there was some orai agreement also regara'ing the constructlon, has been disbeiieved wlth a finding that the plaintiff has failed to prove the sarne by ieadlng oral evidence. 9» The finding of both the Courts below Is a!so on the fact that when construction of the shop was going on, fittlngs withln the wall vras undertaken as per his direction. Both the Courts below eiaborateiy discussing the evldence avaiiable on re-cord arrived at the concluslon that the piaintlff has failed to prove hls and the sarne Is on proper appredation ofthe evidence. 10. Thus cn the of discussions, l am of the opinion that no substantia! question of iaw is involved for adjudicatlon of this and according!y, the being devold of merits to be dismissed and It is dlsmlssed. l Sd/- Dhirendra Mishra Judge &^12/2005 p^o^