Smt. Neelam Dixit Vs Smt. Resham Bai Sahu (Died) Through Lrs.

3 - Ku. Purnima Sahu D/o Late Mohan Lal Sahu Aged About 34 Years R/o Near Gandhi Chowk, Khamtarai, Raipur, Tahsil And District- Raipur, Chhattisgarh.

¶12

4 - Smt. Tijiya Sahu W/o Shri Chintamani Sahu Aged About 28 Years R/o Village- Datrenga (Dunda) Raipur, Tahsil And District- Raipur, Chhattisgarh.

¶13

5 - Smt. Tikeshwari Sahu @ Ishwari Sahu W/o Shri Shankar Sahu Aged About 26 Years R/o Village Choutana, Post- Mandir Hasoud, Tahsil- Mandir Hasoud, District- Raipur, Chhattisgarh.

¶14

6 - Smt. Sangeeta Sahu W/o Shri Dinesh Sahu Aged About 25 Years R/o Dharamanagar, Panchmedinaka, Raipur, Tahsil And District- Raipur, Chhattisgarh.

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¶16

7 - Ku. Demin Sahu D/o Late Mohan Lal Sahu Aged About 22 Years R/o Near Gandhi Chowk, Khamtarai, Raipur, Tahsil And District- Raipur, Chhattisgarh.

¶17

8 - Shri Dhanush Ram Sahu S/o Late Mohan Lal Sahu Aged About 40 Years R/o Near Gandhi Chowk, Khamtarai, Raipur, Tahsil And District- Raipur, Chhattisgarh.

¶18

9 - Shri Tulsi Ram Sahu S/o Late Dhanau Sahu Aged About 50 Years R/o Near Gandhi Chowk, Khamtarai, Raipur, Tahsil And District- Raipur, Chhattisgarh.

¶19

10 - Shri Mahanguram Sahu S/o Late Dhanau Sahu Aged About 48 Years R/o Near Gandhi Chowk, Khamtarai, Raipur, Tahsil And District- Raipur, Chhattisgarh.

¶20

11 - Shri Ramu Sahu (Died) Through LRs as Per Honble Court Order Dated 08-03-2021.

¶21

11 - (A). Krishna Sahu S/o Late Ramu Sahu Aged About 27 Years Near Gandhi Chowk, Khamtarai, Raipur, District Raipur Chhattisgarh.

¶22

12 - Shri Santosh Sahu (Died) Through LRs as Per Honble Court Order Dated 08-03-2021.

¶23

12 - (A). Rohit Sahu Uncle Of Late Santosh Sahu Aged About 29 Years Near Gandhi Chowk, Khamtarai, Raipur, District Raipur Chhattisgarh.

¶24

13 - The State Of Chhattisgarh Through Collector, Raipur, District- Raipur, Chhattisgarh.

¶25

... Respondents

¶26

For Appellant	: Mr. Rishikant Mahobia, Advocate.
For Respondents No. 8 & 9	: Mr. B.P. Sharma, Advocate.
For Respondent/State	: Ms. M. Asha, Panel Lawyer

¶27

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¶28

Hon'ble Smt. Justice Rajani Dubey,

¶29

Hon'ble Shri Justice Bibhu Datta Guru, JJ

¶30

Judgment on Board

¶31

Per Rajani Dubey, J

¶32

05/12/2024

¶33

Challenge in this appeal is to the legality and validity of the judgment and decree dated 17.12.2018 passed in Civil Suit No.58A/2016 by II Additional District Judge, Raipur by which suit of the plaintiff for specific performance of contract, permanent injunction and for refund of the advance amount has been partly allowed.

¶34

The appellant/plaintiff filed a suit for specific performance of contract and permanent injunction in relation to land bearing Khasra No.80/2013, area 25 decimal i.e. 10656 sqft situated at Village-Dhaneli, PC No.98/24, Revenue Circle Dharsiwa-2, Raipur, Tahsil & Distt. Raipur and also praying for return of a sum of Rs.11,27,000/- additionally paid to defendants No. 1 to 12 with interest. It was averred that an agreement to sell dated 13.2.2012 was executed between Smt. Shakuntala Dixit w/o Shri Rameshwar Prasad Dixit and defendants No. 1 & 12 whereby the suit property was agreed to be sold to the plaintiff for a consideration of Rs.24 lacs per acre and accordingly, an advance of Rs.8.40 lacs was paid to defendants No. 1 to 12. It was alleged in the plaint that lands bearing Khasra No.80/13, area 1.049 hectare i.e. 2 acre 60 decimals belongs to defendants No. 1 to 12 and they are title and possession holder of the same. According to the agreement dated 13.2.2012, lands of defendants No. 1 to 12 are proposed for acquisition by the State Government and they are entitled to get compensation of the same. After acquisition, for rest of the lands defendants No. 1 to 12 are bound to execute sale deed in favour of Smt. Shakuntala after taking the consideration amount.

¶35

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¶36

Though acquisition of land is proposed but till date it is not done. For this reason, husband of Smt. Shakuntala Dixit got the land demarcated and then it revealed that only 102257 sqft land is proposed for acquisition for construction of road by the State Government, as such 10656 sqft of land is remaining with them.

¶37

Smt. Shakuntala Dixit had given an advance amount of Rs.8.40 lacs to defendants No. 1 to 12. Thereafter on different dates a sum of Rs.17.27 lacs as advance money was paid to them through cheque or cash. However, Smt. Shakuntala expired on 11.5.2014. She had executed a Will dated 15.1.2014 in favour of the plaintiff Neelam Dixit and as such, Neelam Dixit is having right to enforce the said agreement. Thereafter as per demand of defendants No. 1 to 12, the plaintiff has paid total sum of Rs.22,000/- in cash which was mentioned in back side of the agreement. On 27.6.2015 it came to the knowledge of father-in-law of the plaintiff that only 10656 sqft of land is remaining for sale with defendants No. 1 to 12. In spite of that, plaintiff is ready and willing to execute sale deed in respect of 25 decimals of land and requested defendants No. 1 to 12 to execute sale deed, however, they have not taken any action, so a notice was sent to them but they denied to execute sale deed in her favour. Hence this suit.

¶38

Defendants No. 1 to 12 remained ex-parte and did not even file written statement.

¶39

Learned trial Court considering the pleadings of the plaintiff and the documents on record, by the impugned judgment and decree allowed the suit in part holding that the plaintiff is not entitled for specific performance of agreement dated 13.2.2012 but entitled to receive the advance amount of Rs.8.40 lacs from defendants No. 1 to 12 with 6% interest from the date it

¶40

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¶41

was paid to them till the date of payment. Hence this appeal.

¶42

Learned counsel for the appellant/plaintiff submits that the impugned judgment and decree are contrary to the facts, law and circumstances of this case. Learned trial Court failed to consider that after execution of agreement dated 13.2.2012 the plaintiff regularly made contact with defendants No. 1 to 12 for execution of the sale deed and has always shown her readiness and willingness to purchase the suit property. It is not in dispute that agreement dated 13.2.2012 was duly executed between Smt. Shakuntala Dixit and defendants No. 1 to 12 and it was proved by the plaintiff also and being so, defendants No. 1 to 12 were duty bound to perform their part of the contract. Learned trial Court did not even frame proper issue in this regard whether the plaintiff is ready and willing to perform her part of the contract which is an essential issue in a suit for specific performance of contract. Further, learned trial Court was not justified in holding that the plaintiff did not adduce any evidence regarding payment of Rs.11.27 lacs because in the backside of the agreement, it is mentioned that on different dates the defendants No. 1 to 12 have received consideration amount.

¶43

Learned counsel for the appellant further submits that the trial Court ought to have appreciated the fact that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. It ought to have seen that the defendants replied to the notice dated 9.3.2016 sent by the plaintiff (Ex.P/28) and as such, they were having knowledge about execution of the agreement and despite that they remained ex-parte and did not step into the witness box which raises an adverse inference against them. The findings recorded by the

¶44

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¶45

learned trial Court are not based on proper appreciation of oral and documentary evidence and therefore, the present appeal deserves to be allowed.

¶46

Reliance is placed on the decisions in the matters of Kamal Kumar Vs. Premlata Joshi & Ors. reported in (2019) 3 SCC 704 and Shenbagam and Ors. Vs. KK Rathinavel reported in 2022 SCC OnLine SC 71 .

¶47

On the other hand, learned counsel appearing for the respondents/defendants supporting the impugned judgment and decree would submit that the learned trial Court having regard to the facts and circumstances of the case, in light of oral and documentary evidence on record, rightly dismissed the suit of the plaintiff which calls for no interference by this Court. Non-framing of issue regarding readiness and willingness on the part of the plaintiff to perform her part of contractual obligation is not fatal if the parties are aware that they have to face the trial and lead their evidence accordingly. Therefore, the instant appeal being sans merits is liable to be dismissed.

¶48

Reliance has been placed on the decisions in the matters of Nagubai Ammal & Ors. Vs. B. Shama Rao & Ors reported in 1956 SCC OnLine SC 14 , Sughar Singh Vs. Hari Singh (Dead) Through Legal Representatives and Ors. reported in (2021) 17 SCC 705 and Laxman Tatyaba Kankate & Anr. Vs. Taramati Harischandra Dhatrak reported in (2010) 7 SCC 717 .

¶49

We have heard learned counsel for the parties and perused the

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¶51

material available on record.

¶52

It is clear from the record of learned trial Court that the plaintiff filed a suit for specific performance of contract pursuant to the agreement dated 13.2.2012. Learned trial Court based on the pleadings of the parties and the documents on record framed the following issues for adjudication of the suit:

¶53

"01. क्या�वा�दि�नी�, वा��्ቇस्तसं�पቈኌ�के�सं�बं�धेሰ दितवा��गणके�दिवारू्ቍ दिनीष्प�दि�तदिवाकेयाइकेरा�रानी�ेሰ�दि�नी��के-13/2/2012 के� दिवादि�्ቖ अनी"प�लनीकेरा�नी�के$ अቈኌधके�रिराण�है'?

¶54

क्या�वा�दि�नी�वा'केቜኌ)पकेअनी"त*षके�रूपेሰ �इकेरा�रानी�ेሰ�के�अनी"्ቅेሰ ��नीके$ गईअदि्ቇेሰ्ቚ दितफलके$ रा�दि�्ቚ दितवा��गणसं�वा�पसं

¶55

�्቎ केरानी�के$ अቈኌधके�रिराण�है'?

¶56

संहै�यात�एवा�व्याया ?"

¶57

The main objection of the plaintiff is that no specific issue with regard to readiness and willingness of the plaintiff was framed by the learned trial Court while adjudicating the suit. It is evident from Issue No.1 that the learned trial Court framed only one issue in this regard and after appreciation of oral and documentary evidence, found that the plaintiff has failed to prove this issue and accordingly, dismissed the suit.

¶58

This Court in the matter of Manish Bajpai Vs. Alkesh Lakde, FAM No.155/2019 , held in paras 17, 18 & 19 of its judgment as under:

¶59

"17. Further, in the matter of Shenbagam (supra), it was held in para 27, 28, 29, 33 and 35 as under :-

¶60

“27. The trial court decreed the suit for specific performance in favour of the respondent. The trial court only framed the following two issues:

¶61

"1. Whether the plaintiff [is entitled] for the relief of

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¶63

specific performance?

¶64

2. To what other reliefs?"

¶65

28. No issue on readiness and willingness was framed by the trial court. The trial court analysed the notice issued by the appellants and held that the appellants made no demand from the respondent to discharge the mortgage liability. Thus, the appellants' plea that the respondentplaintiff had to pay the loan and only thereafter, could the appellants execute the sale deed was rejected. The court also accepted the respondent's argument that the advance amount of Rs. 10,000 was paid to discharge the mortgage. Further, the trial court observed that the documents submitted by the respondent indicate that he had sufficient means to purchase the suit property. The judgment of the trial court was upheld by the first appellate court and, in a second appeal, by the High Court.

¶66

29. All the three courts, including the High Court, grossly erred in the manner in which they have adjudicated upon this dispute in a suit for specific performance. In the first instance, the trial court failed to frame an issue on whether the respondent- plaintiff was ready and willing to perform his obligations under the contract and instead assessed whether he is entitled to the relief of specific performance. In doing so, the trial court viewed the legal issue from an incorrect lens. The foundation of a suit for specific performance lies in ascertaining whether the plaintiff has come to the court with clean hands and has, through his conduct, demonstrated that he has always been willing to perform the contract. There is a conspicuous absence in judgment of the trial court of any reference to evidence led by the respondent to indicate his willingness to perform the contract. The trial court merely adverted to "document produced on behalf of the plaintiff and concluded that he had sufficient means to purchase the suit property. Apart from this observation, the judgment fails to analyse the

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¶68

terms of the agreement, the obligations of the parties and the conduct of the respondent or the appellant.

30. XXXX

31. XXXX

32. XXXX

33. We shall now advert to the respondent's conduct throughout the sale transaction. The respondent has failed to provide any documents or communication which would indicate that he called upon the appellants to perform their obligations or discharge the mortgage within the time period stipulated in the contract. Even after the expiry of the six months, the respondent did not reach out to the appellants. It is only in response to the appellants' legal notice that the respondent demanded performance of their obligations. Merely averring that he was waiting with the balance consideration and believed that the appellants would clear the encumbrance is insufficient to prove that the respondent-plaintiff was willing to perform his obligations under the contract.

¶73

34. XXXX

¶74

35. The 'readiness' of the respondent to perform his obligations refers to whether he was financially capable of paying the balance consideration. Both the trial court and the first appellate court have observed that the respondent was ready to pay the balance consideration as (1) he was paying income tax since 1988 and (ii) his bank passbooks indicate that he had sufficient funds. The payment of income tax by itself does not show that the respondent had sufficient resources to pay for the suit property. Moreover, the bank passbooks submitted in evidence by the respondent were for accounts opened on 11 March 1992 and July 1994, that is, after the expiry of the period written in the contract. The first appellate court despite noting this, has chosen to hold that the respondent was ready and

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¶76

willing to perform the agreement. The respondent however did not lead any evidence to indicate that in the year 1990 he had the money to pay the balance consideration. The first appellate court shifted the burden on the appellants to prove that the respondent-plaintiff was incapable of paying the balance consideration. It is an established principle of law that the plaintiff must prove that he is ready and willing to perform the contract. The burden lies on the plaintiff. The respondent has not led any evidence that he was ready or willing to perform his obligations under the agreement. “

¶77

Again in the matter of V.S. Ramakrishnan (supra), it was held in para 8, which reads thus :-

¶78

“8. Now the findings and the reasoning given by the learned Trial Court refusing to pass a decree for specific performance is concerned it appears that though there was no specific issue framed by the learned Trial Court on readiness and willingness on the part of the plaintiff, the Trial Court has given the findings on the same and has non- suited the plaintiff by observing that the plaintiff was not having sufficient funds to make the full balance consideration on or before 12.01.2006. Such a finding could not have been given by the learned Trial Court without putting the plaintiff to notice and without framing a specific issue on the readiness and willingness on the part of the plaintiff. There must be a specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance and before giving any specific finding, the parties must be put to notice. The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same. On the aforesaid ground the judgment and order passed by the learned Trial Court dismissing the suit and refusing to pass the decree for specific performance of the agreement to sell confirmed by the High Court deserves to be quashed and

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¶80

set aside and the matter is to be remanded to the learned Trial Court to frame the specific issue with respect to the readiness and willingness on the part of the plaintiff. On remand the parties be permitted to lead the evidence on the readiness and willingness on the part of the plaintiff to perform his part of the contract, more particularly, whether the plaintiff was ready and willing to pay the full consideration and whether the plaintiff was having sufficient funds and/or could have managed the balance sale consideration.”

¶81

Very recently, Hon’ble Supreme Court in the matter of Pydi Ramana (supra) held in para 14 as under :-

¶82

14. There is a distinction between the terms 'readiness' and 'willingness'. 'Readiness' is the capacity of the plaintiff to perform the contract which includes his financial position to pay the sale consideration. 'Willingness' is the conduct of the party. In the instant case, even according to the concurrent findings recorded by the courts below, it would emerge that the plaintiff had been able to successfully prove the sale agreement dated 07.06.1993 Ex.A1 on which date Rs. 2,005/- was paid by the plaintiff to the defendant. The evidence on record tendered by plaintiff came to be accepted by all the courts and judgments of courts below would also indicate that further amount towards sales consideration in a sum of Rs. 17,000/- was paid by plaintiff to defendant on 23.06.1993 and same-wasendorsed by him. As per the recital in the agreements, the defendant was required to get the suit land surveyed and as such the total consideration was agreed to be settled after such survey. On the one hand, the plaintiff contends that defendant never got surveyed the suit land. On the other hand pleadings and evidence of plaintiff is silent on steps taken by the plaintiff as expected of a reasonable person which has not been taken in the instant case

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¶84

namely the plaintiff has not produced any evidence either oral or documentary to establish that there was any demand made by him for the land being surveyed by defendant. No witnesses have been examined on behalf of the plaintiff to establish that at any point of time there has been demand made by the plaintiff with the defendant by calling upon him to get the suit land surveyed as agreed under the agreement of sale Ex.A1. It is for the first time after a period of 3 years from the date of agreement Ex.A.1 namely on 30.05.1996 legal notice (Ex.A3) was got issued or in other words plaintiff was silent for a period of 3 years in enforcing of the agreement of sale. It is for this specific reason the trial court while rejecting the prayer for decree of specific performance has recorded a categorical finding to the following effect:

¶85

21. The terms of the agreement xxx the period of one year. The plaintiff got issued a legal notice on 30.05.1996 ΕΧ.Α.3 expressing his readiness to go ahead with the transaction and calling upon the vendors to execute the sale deed. That means nearly for two years after the expiry of one year period. The plaintiff vendee did nothing to act in furtherance of the agreement. Excepting a bald and vague assertion that he was contacting the vendors but they were dodging nothing more is brought on record to satisfy the court that the plaintiff was at all material times interested in finalizing the deal and showing his readiness and willingness to perform the essential terms of the agreement. Though the suit was filed within the period of limitation, it is not sufficient. In assessing the question of readiness and willingness of the party to perform his part of the contract. It is highly essential to take into account the long unexplained silence and inaction on the part of the plaintiff.

¶86

22. Plaintiff must perform his part of the contract within reasonable time. There was total inaction on the part

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¶88

of the plaintiff for 2 12 years which was not consistent with the terms of agreement. From 6.6.94 to 30.5.96 i.e., for a period of 23 months, plaintiff sat quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of one year, within which he was expected to urge the defendantvendor to get measurements of land and fix the sale price and to tender the balance amount and call upon the defendants to execute sale deed and deliver possession of the property.

¶89

As rightly pointed out by the trial court, the respondentplaintiff has not produced any satisfactory evidence to prove his readiness and willingness. As regards 'willingness' of the plaintiff to perform his part of the contract, the conduct of the plaintiff warranting the performance has to be looked into. The following conduct of the plaintiff warrants consideration:

¶90

a. Plaintiff got issued legal notice nearly after two years after the expiry of one year period as prescribed in the agreement.

¶91

b. Plaintiff has not brought anything on record to prove that he contacted the Defendant after the expiry of one year period and was interested in finalising the deed.

¶92

c. There was total inaction of the Plaintiff from 06/06/1994 (expiry of one year period) to 30/05/1996 (Date of issuance of legal notice)

¶93

d. Suit was filed on 09/06/1997 i.e. after a period of more than one year from the date of issuing of legal notice. Sald delay has not been sufficiently explained by the Plaintiff.

¶94

The continuous readiness and willingness is a condition precedent to grant the relief of specific performance. The trial Court has rightly held that plaintiff has not sufficiently explained and proved that he was always ready and willing

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¶96

to perform his part of the contract. As such the High Court and the First Appellate Court had erred in holding that plaintiff had proved his readiness and willingness.

¶97

In the present case, conditions No. 1 to 12 of the agreement (Ex.P/3) dated 13.2.2012 read as under:

¶98

"01. याहैदिके, दिवा्ቅ�त�के�स्वा�दिेሰत्वाएवा�आቈኌधपत्याके$ भू5दिेሰ खसंरा�नी�बंरा 80/13, राकेबं� 1.049 है�क्टे�यारा, वा�के�्ቇ �ेሰ धनी�ल�, प.है.नी�. 98/24, रा�.दिनी.ेሰ�. धरासं8वा�-2, रा�याप"रा, तहैसं�लवाቈኌ9ल�रा�याप"रा (छ��संगढ़) �ቜኌस्<तहै', ቈኌ9संके�दिकेदिवा्ቅ�त� संቓኋ�वाकेभू5दिेሰस्वा�ेሰ�एवा�आቈኌधपत्याध�रा�है'।ऋणप"ቜኌस्तके�्ቅेሰ ��के 388168 है'। 02. याहैदिके, दिवा्ቅ�त�गण@ नी�्ቅ �त�के� प�संउपरा्ሹ भू5दिेሰ के रुपया� 24,00,000/- (अ्ቌरा�चा�बं�संल�खरुपया�) दितएकेड़के$ �रासं�दिवा्ቅयाकेरानी�के� संG��पक्के�केरा, दिवा्ቅ�त�गण@ नी�, �त�सं�बंया�नी�स्वारूपरा�दि�रुपया� 8,40,000/(अ्ቌरा�आठल�खचा�लसंहै9�रारुपया�) नीग�संेሰ्ቌ �* गवा�है@ के�्ቚ �्቎ केराቈኌलया�है' ቈኌ9संके$्ቚ �दि्቎ के$ अदिभूस्वा�केI दितदिवा्ቅ�त�इसंइकेरा�रानी�ेሰ�के�ቛኋ�रा�केरात�है' त<� बं�के$ के$ ��षराक प�9�यानीदिनीष्प��नीके�संेሰयादिवा्ቅ�त�, �त�सं�्ቚ �्቎ केरा�ग�।इसं तराहैसं�्ቚ त्या�केदिवा्ቅ�त�नी� 70000/- (सं�राहै9�रारुपया�) नीग�्ቚ �्቎ केराहैस्त�्ቌरा केरादि�या�।्ቅ �त�गणआपसं�संहैेሰदितसं�दिकेसं�अन्याके�नी�ेሰ सं�भू�बं'नी�ेሰ�केरावा� संके�ग�इसंेሰ�दिवा्ቅ�त�गण@ के* केईआप��नीहै8 हैग�।

¶99

याहैदिकेदिवा्ቅ�त�, �त�सं��षराक के�भू"गत�नीइकेरा�रानी�ेሰ�दिनीष्प��नीदि�नी��के सं� 6 (छहै) �हैके�अ � रा्ቚ �्቎ केरा, भू5दिेሰ के�रिरा्ሹ आቈኌधपत्या्ቅ �त�के*्ቚ ��नीकेरात� हैLए, �त�के�प्ቌेሰ �या�उसंके�ቛኋ�रा�बंत�या�गया�दिकेसं�भू�नी�ेሰ सं�, भू�ग@ेሰ �त�के$ ቈኌलቈኌखतसंहैेሰदितसं�. �त�के$ सं"दिवाध�नी"सं�रादितቈኌ<ेሰ �दिवा्ቅयाप्ቔ प�9�यानीदिनीष्प�दि�त केरा��ग�।

¶100

याहैदिके, दिवा्ቅयादिवाल�खके�दिनीष्प��नीएवा�प�9�यानीेሰ �लगनी�वा�ल�संेሰस्त व्याया9'सं�स्टे�म्प�")के, प�9�यानी�")केएवा�अन्यादि�गराखचाO्ቅ �त�वाहैनीकेरा�ग�।

¶101

याहैदिके, उपरा्ሹ भू5दिेሰ पराआरादिपतहैनी�वा�ल�संेሰस्तकेरा, लग�नी, टे'क्सं इत्या�दि�दिवा्ቅ�त�ቛኋ�रा�प�9�यानीदि�नी��केतकेअ��दिकेया�9�वा�ग�तत्पश्चा�तQ आरादिपत हैनी�वा�ल�संभू�केरा्ቅ�त�वाहैनीकेरा�ग�, दिकेउ्ሹ उपरा्ሹ भू5दिेሰ के�दिवा्ቅयाबं�बंतQ 9* भू� आवाश्याके�स्त�वा�9 या<�बं�-1, खसंरा�, नीक्��, ऋणप"ቜኌस्तके�, त�राहैकेRलेሰ (तहैसं�ल��रासं�संत्या�दिपत) एवा�अनी"ेሰदित��ग�, उसं�दिवा्ቅ�त�अपनी�स्वाया�के�खचाS सं� �्቎ केरा�ग�।

¶102

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¶103

याहैदिके, उपरा्ሹ भू5दिेሰ आ9 दि�नी��केके प5णOतT भू�राेሰ"्ሹ एवा�प�केसं�फहै' अ<�OतQ उपरा्ሹ भू5दिेሰ के प5वाOेሰ �नीत* दिकेसं�के* दिवा्ቅयादिकेया�गया�है' औरानी�है� दिवा्ቅयाकेरानी�के$ केईसं�दिवा��है�के$ गईहै'।दिके, दिवा्ቅ�त�उपरा्ሹ भू5दिेሰ के�दिवाቈኌधवात आरा.आई. ቛኋ�रा�सं�ेሰ��केनीकेरावा�केरात<�रा�9स्वादिनीरा�्ቌकेसं�नीक्��"रूस्त केरावा�केरा, सं�ेሰ��केनी्ቚ दितवा � नी��वा�ग�सं�< है�ेሰ Gके�परा9* भू�भू5दिेሰ प�ई9�वा�ग�उसं� अनी"प�तेሰ �भू"गत�नीቈኌलया�एवा�दि�या�9�वा�ग�।

¶104

याहैदिके, �त�उपरा्ሹ भू5दिेሰ के�स्वात्वाके�सं�बं�धेሰ �9��चाअपनी�प5णO सं�त"दि्ቖ के� अनी"सं�राकेरावा�संकेत�हैV एवा�प�9�यानीदिनीष्प��नीके�प5वाO संेሰ�चा�राप्ቔेሰ �आेሰ सं5चानी� के�दि�तकेरावा�संकेत�हैV, इसंेሰ�दिवा्ቅ�त�के दिकेसं�भू�्ቚ के�राके$ आपቈኌ�नीहै8 हैग�। यादि�आेሰ सं5चानी�्ቚ के��नीसं�दिकेसं�भू�्ቚ के�राके$ आपቈኌ�आत�है' त उसंके� दिनीरा�केराणके$ संम्प5णO 9वा�बं��रा�औरा��नी��रा�दिवा्ቅ�त�के$ हैग�एवा�दिनीरा�केराण पश्चा�तQ है�प�9�यानीदिनीष्प��नीकेरा�या�9�वा�ग�।यादि�उपरा्ሹ के�याO एवा�के�याOवा�है� दिवा्ቅ�त�ቛኋ�रा�दिनीध�Oरिरातसंेሰया�वाቈኌधेሰ �प5णO नीहै8 के$ 9�त�है' त* इसंेሰ�है*नी�वा�ल� दिवालम्बंइकेरा�रानी�ेሰ�के$ बंढ़�हैLईअवाቈኌधेሰ �नी�9�वा�ग�।

¶105

याहैदिके, दिनीध�Oरिरातसंेሰया�वाቈኌधके�भू�तराराቈኌ9स्टेW�बं'नी�ेሰ�के�प�9�यानी दिनीष्प��नी्ቅ �त�अपनी�दिहैतेሰ �नीहै8 केरावा�प�त�है' त* उसंके�दि�या�हैLआबंया�नी�डू5बं 9�वा�ग�।इसं�तराहैअगरादिनीध�Oरिरातसंेሰया�वाቈኌधके�भू�तरादिवा्ቅ�त�बं�के$ के$ ��षराक े �त�ቛኋ�रा�अ��केरानी�के�ቈኌलएतत्पराएवा�त'या�राराहैनी�के�पश्चा�तQ भू�, �त�के�प्ቌेሰ � राቈኌ9स्टेW�बं'नी�ेሰ�के�दिनीष्प��नीएवा�प�9�यानीकेरानी�ेሰ �है�ल�हैवा�ल�या�इ�के�राकेरात�है' त्ቅ �त�के याहैअቈኌधके�रा्ቚ �्቎ हैग�दिकेवाहैइसंइकेरा�रानी�ेሰ�के�दिवादि�्ቖ अनी"प�लनी के�वा��न्या�या�लयाेሰ ��याराकेराअपनी�दिहैतेሰ �राቈኌ9स्टेW�बं'नी�ेሰ�के�दिनीष्प��नीदिवा्ቅ�त� के�खचाO पराकेरावा�संकेत�है'। 09. याहैदिके, दिवा्ቅ�त�नी�इसंइकेरा�रानी�ेሰ�दिनीष्प��नीके�प5वाO, उपरा्ሹ भू5दिेሰ के* बं�चानी�के�ेሰ GቈኌखकेसंG��या�ቈኌलቈኌखतकेरा�रादिकेसं�सं�नीहै8 दिकेया�है'।भूदिवाष्याेሰ �यादि� दिकेसं�भू�्ቚ के�राके�दिवाल�खप�या�9�त�है' त* वाहैइसंइकेरा�रानी�ेሰ�के�संेሰ्ቌ वाहै अवा'धएवा��5न्याहैग�एवा�उ्ሹ के�दिनीरा�केराणके$ संम्प5णO 9वा�बं��रा�वा��नी��रा� दिवा्ቅ�त�के$ हैग�।

¶106

� 10. याहैदिके, इकेरा�रानी�ेሰ�के$ �तY�के�प�लनीदिवा्ቅ�त�ቛኋ�रा�दिनीध�Oरिरातसंेሰया�वाቈኌधेሰ प5णO केराउसंके$ सं5चानी�्ቅ �त�के* ቈኌलቈኌखतेሰ ��ग�।यादि�दिनीध�Oरिरातसंेሰया�वाቈኌधेሰ � इकेरा�रानी�ेሰ�के$ �तY�के�प�लनीदिवा्ቅ�त�ቛኋ�रा�नीहै8 दिकेया�9�केराउसंके$ ቈኌलቈኌखत सं5चानी�्ቅ �त�के्ቚ ��नीनीहै8 केरात�है' त उ्ሹ अवाቈኌध�तY�के�प�लनीकेरानी�तके इकेरा�रानी�ेሰ�के$ बंढ़�हैLईअवाቈኌधेሰ �नी�9�वा�ग�।

¶107

याहैदिके, दिवा्ቅ�त�ቛኋ�रा�उ्ሹ भू5दिेሰ के* दिवा्ቅयाकेरानी�के�प5वाO अपनी�परिरावा�राके�संभू� सं�स्या@ सं�संहैेሰदित्ቚ �्቎ केराቈኌलया�है' तत्पश्चा�तQ है�वाहैइकेरा�रानी�ेሰ�के�दिनीष्प��नी

¶108

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¶109

केराराहै�है' त<�उ्ሹ दिवाल�खके��ब्�@ के$ अदिभूव्यादि्ሹेሰ �उभूयाप्ቌ के��या�, ��संके, ्ቚदितदिनीቈኌध, उ�रा�ቈኌधके�रा�आदि�संቜኌम्ेሰቈኌलतसंेሰझे�9�वा�ग�।

¶110

12 याहैदिके, उ्ሹ भू5दिेሰ सं�लगकेरा्ቇ �ेሰ टे�टे�बं�धसं�धनी�ल�के* दिेሰल�त�हैLया�रा�याप"रा दिबंल�संप"राराडूरा�्ቖW�यारा�9ेሰ�गO के 9ड़नी�वा�ल�बं�ईप�संराडू (लगभूग 300 फ$टे चाGडू�रा*डू) स्त�दिवातहै' ቈኌ9संेሰ�दिवा्ቅ�त�ओं�के$ उ्ሹ भू5दिेሰ के�के" छभू�ग9�राहै�है' ቈኌ9संके�ेሰ "आवा9�दिवा्ቅ�त�गण्ቚ �्቎ केरा�ग�औरा��षभू5दिेሰ के�है�प�9�यानीकेरा�या�ग�औरा दितफलरा�दि�भू�उसं�अनी"प�तेሰ ��9�या�ग�।"

¶111

This agreement was executed on 13.2.2012 and as per the plaintiff she sent first notice to the defendants on 9.3.2016. She has also filed reply of the defendants (Ex.P/28) to the said notice where they denied the fact that plaintiff is ready and willing to perform her part of contractual obligation. Thus, having regard to the pleadings and the documents on record, the learned trial Court ought to have framed an issue with regard to readiness and willingness of the plaintiff but without framing such issue, the suit was dismissed. According to the guidelines of the Hon'ble Supreme Court, the object and purpose of framing issue is to enable the parties to prove their case by leading evidence on such issue. However, in the present case, the learned trial Court without framing the above specific issue, proceeded to decide the suit after appreciation of oral and documentary evidence adduced on the other issues framed and dismissed the suit which is not sustainable in law. Thus, findings recorded by the learned trial Court, in the opinion of this Court, are not according to the provisions of the Specific Relief Act and run contrary to the facts and circumstances of the case.

¶112

In the totality of facts and circumstances of the case, the judgments of the Hon'ble Supreme Court referred to above, the nature of dispute between the parties and the relief sought for by the plaintiff, the impugned judgment and decree dated 17.12.2018 passed by learned trial Court are hereby set

¶113

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¶114

aside. The matter is remanded to the trial Court concerned to decide the suit afresh in accordance with law after framing specific issue as to readiness and willingness on the part of the plaintiff to perform her part of contractual obligation. Needless to state that the parties shall be allowed to amend their pleadings and adduce additional evidence on the issues so framed. The trial Court to decide the suit expeditiously, preferably within a period of six months from the date of appearance of the parties. It is made clear that nothing in this order shall be construed as an expression of opinion of this Court on merits of the case and the trial Court to decide the suit on the basis of pleadings and evidence of the parties strictly in accordance with law.

¶115

Parties are directed to appear before the concerned trial Court on 14th January, 2025.

¶116

The appeal stands allowed to the above extent. No order as to cost(s).

¶117

Sd/ Sd/ (Rajani Dubey) (Bibhu Datta Guru) Judge Judge

¶118

Digitally MOHD signed by AKHTAR MOHD KHAN AKHTAR KHAN

¶119

Khan

Smt. Neelam Dixit v. Smt. Resham Bai Sahu (Died) Through Lrs.

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Smt. Neelam Dixit v. Smt. Resham Bai Sahu (Died) Through Lrs.

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