MHNG010034522021 Presented on : 18.03.

2021
Registered on : 25.03.2021
Decided on : 05.05.2022
Duration : 01 Y. 01 M. & 10 days

Exh.No.27

IN THE COURT OF DISTRICT JUDGE­1 AT NAGPUR

(Presided over by M.S. Azmi, District Judge­1 & Addl. Sessions Judge, Nagpur)

REG. CIVIL APPEAL NO.53/2021

1. Rajendra S/o Mahadeorao Kale,

Aged 40 Years, Occ:

2. Sau. Geeta W/o Rajendra Kale,

Aged 38 Years, Occ: Housewife,

3. Ku. Kiran D/o Rajendra Kale,

Aged 20 Years, Occ: Education,

4. Ku. Karishma D/o Rajendra Kale,

Aged 18 Years, Occ: Education,

5. Ku. Sneha D/o Rajendra Kale,

Aged 16 Years, Occ: Education,

6. Karan S/o Rajendra Kale,

Aged 13 Years, Occ: Education,
All Bos.1 to 6 R/o Mangrul, Post­
Vyaha Peth, Tah. Hingna, Dist. Nagpur. … APPELLANTS
(Original Defendants)
...Versus...

Jeetendra S/o Vinayakrao Saraykar,

Aged 35 Years, Occ: Labour, … RESPONDENT
R/o Plot No.41, Bhojraj Bhavan, (Original Plaintiff)
Gittikhadan Layout, Nagpur.
 2

APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE …

Mr. A.K. Madne, Adv. for Appellants

Mr. Naikwade, Adv. for Respondent

JUDGMENT
(Delivered on this 5th day of May, 2022)

By this appeal the appellants have taken exception to the

judgment and decree dated 12/2/2021 passed by the learned 11 th Joint
Civil Judge, Senior Division, Nagpur in Spl. Civil Suit No.930/2006,
whereby decreed the suit for specific performance of contract. The
parties to the appeal are referred by same nomenclature as before the
Trial Court in order to avoid any confusion.

2. The facts constituting the appeal are summarized as under;

The subject matter of the suit is agricultural field property
bearing Survey No.81 (New Survey No.81/113) admeasuring 0.88 Hr.
and Survey No.84 (New Survey No.94/114) admeasuring 4.87 Hr.
having Kh.No.87 situated at Mouza Girola, Tah. Hingna, Dist. Nagpur
(hereinafter referred to as 'the suit property').

3. Father of the defendant No.1 namely Mahadeorao Kale

agreed to sell the suit property for consideration of Rs.6,00,000/­ vide
agreement dated 24/9/2003. On the day of agreement, the plaintiff
paid an amount of Rs.2,10,000/­ to the deceased Mahadeorao as part
consideration and the remaining balance amount of consideration was
agreed to be paid on the date of execution and registration of the
saledeed, which was to be executed within 36 months from the date of
 3 RCA No.53/2021 (Judgment)

agreement. The plaintiff came across a public notice in newspaper

dated 22/10/2004, wherein it was stated that the deceased Mahadeorao
entered into an agreement of sale of 6 acres of land out of the suit
property with one Sudhir Randive. Therefore, he immediately
approached to the deceased Mahadeorao and Sudhir Randive. Sudhir
Randive agreed to cancel the agreement and plaintiff paid Rs.15,000/­
to him towards refund of earnest amount of Rs.10,000/­ and expenses
of Rs.5,000/­ on 28/11/2004. Said Sudhir Randive executed the deed
of cancellation on the same day. The plaintiff informed the deceased
Mahadeorao to execute and register the sale­deed by accepting the
remaining balance consideration. The deceased Mahadeorao has shown
his willingness to execute and register the sale­deed in November 2004.
The plaintiff, accordingly prepared the sale­deed and also a demand
draft of Rs.3,90,000/­. The plaintiff presented the sale­deed on
11/11/2004 at the Sub Registrar Office, Nagpur for execution and
registration of the sale­deed, but the deceased Mahadeorao did not turn
up due illness and therefore, the sale­deed could not be executed.
Mahadeorao passed away on 26/11/2004. On 7/12/2004, the plaintiff
had paid an amount of Rs.20,000/­ to defendant No.1 for the 13 th day
programme of deceased Mahadeorao. The defendant No.1 assured the
plaintiff that he will execute the sale­deed after mutation of his name in
the revenue record. The plaintiff was all along ready and willing to
perform his part of the contract. Since the defendant No.1 failed to
execute and register the sale­deed. Plaintiff has filed the suit for specific
performance of contract.

4. The defendant No.1 filed written statement and other

defendants have adopted the said statement. It is their stand that the
 4

deceased Mahadeorao was given to the vices of consuming liquor and

therefore, he was always in need of money. The deceased Mahadeorao
was acquainted with one Dilip Suryawanshi, who was aware about the
habits of the deceased Mahadeorao. He represented the deceased
Mahadeorao that he is knowing a social worker, who lends money to
poor people on nominal rate of interest of 1%. On 24/9/2003, Dilip
Suryawanshi came to the house of defendants and introduced the
plaintiff with the deceased Mahadeorao. Plaintiff himself represented
that he will extend financial help to the deceased. The plaintiff paid
Rs.10,000/­ in cash to the deceased Mahadeorao and then, said Dilip
Suryawanshi asked the deceased to sign on blank stamp paper. On
inquiry, plaintiff told the defendant No.1 that he is obtaining signature
on the stamp paper for security purposes and assured that he will not
misuse the said stamp paper. The said stamp paper was signed under
the influence of liquor. No agreement of sale was entered. The suit
property is ancestral property received from the grandfather of
defendant No.1. After the death of his grandfather, the suit property
came to the share of deceased Mahadeorao and after his death, to the
share of defendants. The partition was effected vide partition decree
dated 14/11/2010 in RCS No.13/2010. Hence, the defendants prayed
for dismissal of the suit.

5. After considering the rival pleadings, the learned Trial Court

framed the issues (Exh.48). Parties went for the trial and on behalf of
the plaintiff, the plaintiff entered the witness box and has also examined
one other witness. On behalf of the defendants, defendant Nos.1 and 2
entered the witness box and also examined one independent witness.
After considering the oral and documentary evidence, the learned Trial
 5 RCA No.53/2021 (Judgment)

Court decreed the suit. Being aggrieved by the same, the defendants
have preferred this appeal.

6. Heard learned counsel for the plaintiff and defendants. On

the rival contentions of the parties, following points arise for my
determination and findings to it are recorded for the reasons stated to
follow;

POINTS FINDINGS

1) Has plaintiff established that there was a

legal, valid, subsisting and binding
contract dated 24/9/2003 between him
and the deceased Mahadeorao ? .... Yes.

2) Has plaintiff established that he was all

along ready and willing to perform his
part of the contract ? .... Yes.

3) Whether the suit is bad for non­joinder

of necessary parties ? .... No.

4) Whether the suit is barred by

limitation ? .... No.

5) Whether the plaintiff is entitled for the

reliefs claimed ? .... Partly yes.

6) Whether the impugned judgment and

decree calls for any interference ? .... No.

7) What order ? ...Appeal is dismissed.

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REASONS

7. As to Point No.1 :
At the outset, from the pleadings and evidence of the
defendants, the fact which is emerging is that there is no denial to the
signature of the deceased Mahadeorao over the agreement. The
plaintiff has specifically pleaded in Para­6 of the plaint that the
defendant No.1 was also present at the time of agreement and he had
also signed the agreement as a witness. The defendant No.1 has denied
of signing agreement as a witness, but has not denied his signature over
the agreement. The plaintiff entered the witness box to substantiate the
fact of execution of the agreement.

8. The main stand of the defendants is that the deceased

Mahadeorao was given to the vice of consuming liquor and the said
agreement was not executed out of his free will, but it was executed
under the influence of liquor. It is also their stand that the deceased
Mahadeorao has borrowed an amount of Rs.10,000/­ from the plaintiff
through Dilip Suryawanshi and for the security purpose, the plaintiff has
obtained signature of the deceased on blank stamp paper. Once the
defendants admitted the signature of the deceased Mahadeorao on the
said document of agreement to sell, it is now for them to explain and
prove that the said agreement for sale (Exh.19) was executed under the
influence of liquor and was a formal document towards security. It is
brought in the cross­examination of the plaintiff and his witness that the
agreement was executed at the house of deceased Mahadeorao in the
evening hours and the same was reduced into writing by the plaintiff.
The plaintiff and his witness categorically deposed that the agreement
 7 RCA No.53/2021 (Judgment)

for sale was executed between the deceased Mahadeorao and plaintiff in
respect of the suit property for valuable consideration of Rs.6,00,000/­,
out of which, the deceased Mahadeorao received Rs.2,10,000/­. There
is nothing brought on the record to suggest that the said transaction was
a money lending transaction. Merely, the plaintiff drafting and scribing
the agreement will not be sufficient to consider that the same is not out
and out agreement for sale. Similarly, it is also brought on the record
that the copy of the copy of the agreement for sale was not given to the
deceased Mahadeorao or defendant No.1. The witness has given
explanation that the xerox machine was not available and therefore,
copy was not given. It is also not a ground to consider that there was no
agreement for sale.

9. The plaintiff is coming with the case that the deceased

Mahadeorao, during subsistance of the agreement (Exh.19), agreed to
sell 6 acres of land out of the suit property to one Randive. The public
notice (Exh.25) is filed to demonstrate the same. From the notice
(Exh.25), it reflects that the deceased Mahadeorao agreed to sell 6 acres
portion of the suit property. Subsequently, the plaintiff approached the
deceased Mahadeorao and Randive and the said agreement was
cancelled on 28/11/2004 and the receipt to that effect (Exh.26)
showing the payment of Rs.15,000/­ to Randive by the plaintiff for
cancellation of the agreement is placed on record. Had it been the case
that there was no agreement, then it was not required for the plaintiff to
get involved in such act. From the oral and documentary evidence and
also pleadings of the defendants, it is coming on the record that the
deceased Mahadeorao signed the document. The defendants failed to
establish that the said document dated 24/9/2003 was towards security.
 8

Apart from that, the defendant No.1 himself in Para­5 of his evidence
admitted that the plaintiff has paid Rs.20,000/­ to him for 13 th day last
rites of his father deceased Mahadeorao. The said amount was paid
towards loan. But, in cross­examination he stated that he has not
received the cheque but the amount was received by him through
Surwanshi. If there was no transaction, then there was no occasion for
the plaintiff to give Rs.20,000/­ to the defendant No.1. The defendants
are blowing hot and cold. On one hand, they claim that deceased
Mahadeorao signed the document under the influence of liquor and on
the other hand, the document was got executed by plaintiff towards
security of loan. This double stand of defendants exposes their falsity.
Absolutely, there is no evidence except bare words of defendants to
suggest that the deceased Mahadeorao was given to vice of consuming
liquor and executed the agreement (Exh.19) under the influence of
liquor. Thus, from the documentary and oral evidence it is established
that the deceased Mahadeorao executed the agreement for sale (Exh.19)
in favour of the plaintiff. It is legal, valid, subsisting and binding
contract between them. Hence, I answer Point No.1 in the affirmative.

10. As to Point No.2 :

It is case of the plaintiff that he was all along ready and
willing to perform his part of the contract. The contract contemplates
that an amount of Rs.3,90,000/­ was to be paid at the time of execution
and registration of the sale­deed. The time period to complete the sale­
deed was 36 months. In the meanwhile, deceased Mahadeorao entered
into an agreement with one Sudhir Randive for 6 acres portion out of
the suit property. On getting the knowledge of the same, the plaintiff
was instrumental for getting the said agreement cancelled. It shows
 9 RCA No.53/2021 (Judgment)

conduct and intention of the plaintiff. Apart from that, the plaintiff was
apprehending that the deceased Mahadeorao would create third party
interest and therefore, he decided to complete the contract between him
and the deceased Mahadeorao immediately and the sale­deed was
agreed to be executed and registered on 11/11/2004. The plaintiff has
produced the account statement to show that the demand draft, which
was prepared, was cancelled as deceased Mahadeorao could not turn up
due to his ill­health and subsequently, he died on 26/11/2004. The
learned counsel for the defendants pointed out that in the cross­
examination, the plaintiff admitted that the suit property is Class­I
occupancy and the sale­deed could have been executed immediately.
This admission is not worth and could not cast any obligation upon the
plaintiff to complete the transaction immediately. The parties are
governed by the agreement (Exh.19), which does not contemplate any
obligation upon the plaintiff for payment of any amount, save and
except, on the date of the execution and registration of the sale­deed.
The conduct of the plaintiff suggests that he was ready with the amount
and even has prepared the demand draft for execution of the sale­deed
on 11/11/2004, which was subsequently cancelled on 24/11/2004 as is
apparent from the account statement (Exh.23). The said fact is not
challenged during the cross­examination of the plaintiff or his witnesses.
Even, after the death of Mahadeorao the plaintiff handed over an
amount of Rs.20,000/­ to the defendant No.1. It is stand of the plaintiff
that the defendant No.1 agreed to complete the contract, but he was not
responding and was trying to create third party interest in the suit
property and therefore, he was compelled to issue public notice
(Exh.32). Similarly, the plaintiff issued notice dated 9/4/2005 through
 10

his Advocate to the defendant No.1 for executing the sale­deed on

21/7/2005. The said notice was sent by RPAD and the acknowledgment
(Exh.29) shows that the same was served upon the defendant No.1.
Although, during the cross­examination the defendant No.1 did not
admit his signature over Exh.29, but the said notice was issued at the
address of the defendant No.1 and there is nothing from the side of the
defendants to disprove that the same was not served upon the
defendant No.1. Merely stating that the signature on the
acknowledgment is forged will not suffice the purpose. Subsequently,
the suit came to be filed. It is argued on behalf of the plaintiff that
pursuant to the ex­parte decree, he has deposited the remaining balance
sale consideration in the Court. Thus, from the above discussion, the
conduct of the plaintiff is suggestive that he was all along ready and
willing to complete his part of the contract. Hence, I answer Point No.2
in the affirmative.

11. As to Point No.3 :

It is contention of the defendants that the suit property is
already partitioned between the coparceners vide judgment dated
14/11/2010 in RCS No.13/2010 and therefore, the present suit is bad
for non­joinder of necessary parties. The suit was for specific
performance of contract executed between the plaintiff and deceased
Mahadeorao. The sole legal heir of Mahadeorao i.e. defendant No.1
was joined as defendant, but subsequently the plaintiff has amended the
plaint and added the wife, son and daughters of the defendant No.1 as
party and therefore, the said objection does not survive. Hence, I
answer Point No.3 in the negative.
 11 RCA No.53/2021 (Judgment)

12. As to Point No.4 :

The contention of the defendants is that the suit is barred by
limitation. There is nothing in the pleadings to elaborate as to how the
suit is barred by limitation. The suit for specific performance is
governed by Article 54 of the Limitation Act. As per the agreement
(Exh.19) dated 24/9/2003, the sale­deed was to be executed within 36
months from the said date of agreement. So, the limitation would start
to run from 23/9/2006 and therefore, the suit filed on 21/9/2006 is wel
within limitation. Hence, the said stand taken by the defendants does
not hold good. Therefore, I answer Point No.4 in the negative.

13. As to Point No.5 :

The plaintiff has claimed the relief of specific performance
of contract, declaration that the compromise decree dated 14/11/2010
in RCS No.13/2010 is not binding upon him and also for perpetual
injunction. The argument of the defendants is that the sale
consideration is inadequate. The rate of suit property was too high at
the time of transaction than the agreed sale consideration. The said
argument is without pleading and evidence and therefore, cannot be
considered. Mere inadequacy of consideration cannot a ground to deny
specific performance unless it is grossly inadequate and illusory. As the
plaintiff has proved the contract dated 24/9/2003 (Exh.19) as legal,
valid, subsisting and binding contract and similarly, he was all along
ready and willing to complete his part of the contract and therefore, he
is entitled for the specific performance of contract. Similarly, the
defendant No.1 was aware about the suit filed by the plaintiff and the
ex­parte decree, he has filed MJC No.43/2010 for setting aside the
judgment and decree dated 16/6/2007. During pendency of the MJC
 12

and the Execution Proceeding No.48/2008, the suit RCS No.13/2010

came to be filed and the same was compromised within a year of its
filing and compromise decree was obtained. This apparently shows that
the suit was filed and compromised to defeat the contract. Thus, said
compromise decree is not binding upon the plaintiff. The plaintiff has
claimed the relief of perpetual injunction against the defendants, but
there is no material to show that the defendant No.1 or other
defendants were trying to create third party interest. Apart from that,
pursuant to ex­parte decree, sale­deed was executed in favour of
plaintiff through the process of Court and the name of plaintiff was
mutated in the revenue record. Hence, for the said reason also, the
relief of perpetual injunction does not survive. Hence, I answer Point
No.5 accordingly.

14. As to Point No.6 :

In view of the above discussion and the findings to Point
Nos.1 to 5, it is clear that the learned Trial Court has appreciated the
oral and documentary evidence in proper perspective on facts and law
and therefore, the impugned judgment and decree does not call for any
interference. Hence, I answer Point No.6 in the negative.

15. As to Point No.7 :

In view of the above discussion and the findings to Point
Nos.1 to 6, the appeal fails and therefore, the following order.

ORDER

i) Appeal is dismissed with costs.

 13 RCA No.53/2021 (Judgment)

ii) R & P be remitted to the Trial Court along with copy

of judgment. Order
Digitally signed
by MOHD
SALMAN MOHD
IQBAL AZMI
Location: Nagpur
Dt/­5th May, 2022 (M.S. Azmi)
District Judge­1,Nagpur

Arguments finally heard on : 04.05.2022

Judgment dictated & : 05.05.2022

delivered on.

Judgment checked, : 09.05.2022

signed & uploaded on.

CERTIFICATE

I affirm that the contents of this P.D.F. File of Judgment are

word to word same as per original Judgment.

Name of Stenographer : Shripad W. Patil