Allowed

Ramgopal Yadav v. Ramadhardead Thr. Lrs. and Ors.

Chhattisgarh HC1 Mar 2021SA/225/2012

Case brief

AI extract

What is this about?

In a second appeal, the High Court held that a document styled as a sale deed was实质上 an agreement to sell due to partial payment of consideration. The Court set aside impugned orders under Section 100 CPC, remitting the matter for specific performance, and questioned the omission to frame issues despite the defendant being ex-parte.

What did the court decide?

Judgment and decree of both Courts below set aside; matter remitted to trial Court for hearing and disposal within three months; substantial question of law answered in favour of the appellant.

Ramgopal Yadav Vs Ramadhardead Thr. Lrs. and Ors. — Specific Performance | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.225 of 2012

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Ramgopal, aged 51 years, son of Shri Maniram alias
Kejuram Yadav, resident of village Mudiyadih, Tahsil
Palari, District Balodabazar (CG)

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---- Appellant/Plaintiff

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Versus

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1. Ramadhar, aged 65 years, son of Kanakram Sahu, (dead) through Legal Heirs-

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(a) Darasmati, aged 62 years, wife of Ramadhar Sahu,

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(b) Jhulabai, aged 45 years, daughter of Ramadhar
Sahu,

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(c) Krishnabai, aged 42 years, daughter of Ramadhar
Sahu,

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(d) Shantibai, aged 40 years, daughter of Ramadhar
Sahu,

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(e) Bablu alias Krishna Kumar, aged 38 years, son of Ramadhar Sahu,

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(f) Santosh Kumar, aged 36 years, son of Ramadhar Sahu,

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(g) Mukesh Kumar, aged 30 years, son of Ramadhar
Sahu,

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(h) Latabai aged 27 years, daughter of Ramadhar Sahu, All above are residents of village Putpura via Arjuni Baldakachhar, Tahsil Kasdol, District Balodabazar (CG)

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2. State of Chhattisgarh through the District Collector, Raipur (now Balodabazar) district presently Balodabazar (CG)

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---- Respondents/Defendants

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For Appellant/Plaintiff:

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Mr.Somnath Verma, Advocate

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For Respondents NO.1(a) to (h):

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None present though served

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For Respondent No.2/State:

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Mr.Ravi Bhagat, Dy.G.A.

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Hon'ble Shri Justice Sanjay K. Agrawal

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Judgment on Board

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01/03/2021

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1. The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellant/plaintiff is as under:-

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“Whether both the courts below were right in deciding the suit as well as the first appeal on the basis of Ex.P-1 treating it to be the sale deed whereas the contents of it establish the same to be only agreement to sell?”

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[For the sake of convenience, the parties would be
referred hereinafter as per their status shown
and ranking given in the suit before the trial
Court].

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2. The plaintiff having entered into agreement to sell with defendant No.1 on 8.5.81 (Ex.P-1) for cash consideration of ₹ 2,900/- executed the said document (Ex.P-1) and made payment of ₹ 1,500/- and ₹ 1,000/-

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was paid on 26.5.1981, which is also the part of
Ex.P-1 and thereafter when the sale deed was not
executed, the plaintiff filed a suit for specific
performance of contract and in alternatively claimed
title on the basis of adverse possession and also
sought relief of permanent injunction, in which
defendant NO.1 remained ex-parte.

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3. The trial Court upon appreciation of oral and documentary evidence available on record, by its

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judgment and decree dated 24.4.2008, held that

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document (Ex.P-1) is not agreement to sell, it is
sale and it is not registered in accordance with
Section 17 read with Section 49 of the Indian
Registration Act, 1908 and therefore, it is

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inadmissible in evidence and dismissed the suit. On
appeal being preferred, the first appellate Court
affirmed the judgment and decree of the trial Court,
against which, this second appeal under Section 100 of
the CPC has been filed by the appellant/plaintiff, in
which one substantial question of law has been
formulated, which has been set-out in the opening
paragraph of this judgment for sake of completeness.

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4. Mr.Somnath Verma, learned counsel for the

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appellant/plaintiff, would submit that both the Courts
below erred in holding that Ex.P-1 is sale deed,
whereas it is only agreement to sell. Mere wrong
nomenclature would not change the status to the
document as Ex.P-1 only an agreement to sell, it

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cannot be held to be sale. He would further submit
that both the Courts below erred in holding Ex.P-1 to
be sale deed and further erred in not trying the suit
as suit for specific performance of contract and even
issue in this regard was not framed by the trial
Court, as such, the judgment and decree of both the

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Courts below deserves to be set aside.

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5. None present for legal representatives of respondent

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No.1/defendant No.1 though served.

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6. I have heard learned counsel for the

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appellant/plaintiff, considered his submission made
herein-above and also went through the records with
utmost circumspection.

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7. The question for consideration is whether Ex.P-1 is agreement to sell or it is sale deed ?

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8. At this stage, it would be appropriate to notice the contents of Ex.P-1 which states as under:-

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fcdzhukek

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eu ds eS jkek/kkj oYn dudjke lkgw xzke iqViqjk Fkkuk dlMksy ftyk jk;iqj dk gwW tks fd vkt fnukad 8-5-81 dks viuk [kqn dk [kkrs dk [ksr vaojgk ,oae lksjh [ksr dks 2900 lkS v{kjku mUrhl lkS :i;k esa jke xksiky oYn dstw ;nq xzke eqfM;kMhg okys ds ikl csp fn;k gwa eS bdjkj djrk gwa fd ml [ksr dk jde 1500 lkS v{kjku iaUnzg lkS :i;k uxn Hkj Ikk;k iapks ds lkeus 8-5-81 dks ckdh jde ,d ekg ds vUnj jftLVªh dj nwaxkA lun jgs oDr t:jrij dke vkosA oYYe n% ijljke lkgw

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8-5-81

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iUnzg lkS- :0 uxn Hkj ik;k

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xokg jkek/kj lkgw iqViqjk 1- lgh fd :i flag pkSng lkS :0 ckadh ysdj ,d ekg ds 2- csnjke vUnj jftLVªh dj nwWxkA 3- n% dk'khjke vkt rkjh[k dks fcdzh djds dCtk ns 4- n% xesaUnz flax fn;kA

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5- ckykjke ;kno xzke eqfM;kMhg jkek/kkj lkgw iqViqjk 8-5-81

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9. A careful perusal of Ex.P-1 would show that though it

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has been styled as sale deed, but it is agreement to sell as ₹ 1,500/- was paid at the time of agreement to sell and thereafter ₹ 1,000/- was also paid on 25.6.81 (total amount of ₹ 2,500/- has been paid to original defendant No.1) and ₹ 400/- remained unpaid. By no stretch of imagination, the said document (Ex.P-1) is sale deed, it is outright agreement to sell and the plaintiff has rightly filed a suit for specific performance of contract, which the trial Court did not notice and even did not frame an issue on the pretext of defendant No.1 remained ex-parte. Even if defendant No.1 is ex-parte and the trial Court is not obliged to frame an issue in light of sub-rule (6) of Rule 1 of Order 14 of the Code of Civil Procedure, 1908, but in order to try the suit effectively, the trial Court ought to have framed issues, which are required for answering or deciding the suit for specific performance of contract. Even the first appellate Court did not notice the same and very cryptic judgment, affirmed the judgment and decree of the trial Court.

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10.Accordingly, the judgment and decree of both the
Courts below are hereby set-aside. The matter is

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remitted to the trial Court for hearing and disposal
in accordance with law. Since the suit was filed on
12.2.2007, the trial Court would do well to consider
and dispose of the suit within three months from the
date of appearance of the parties. The substantial
question of law is answered in favour of the plaintiff
and against the defendants.

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11.The second appeal is allowed to the extent
indicated hereinabove. Records be sent to the
concerned trial Court forthwith. No cost(s).

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12. A copy of this judgment be sent to the concerned District Judge for ensuring the timely compliance of this judgment.

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 Sd/-

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 (Sanjay K.Agrawal)
 Judge

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B/-

Ramgopal Yadav v. Ramadhardead Thr. Lrs. and Ors.

Case brief

What is this about?

What did the court decide?

Ramgopal Yadav v. Ramadhardead Thr. Lrs. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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