Mohammed Shamim Vs Vincent D Souza Wilson D Souza

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2025:CGHC:60348

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA No. 182 of 2013

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1 - Mohammed Shamim S/o Late Abdul Gani Aged About 45 Years R/o Above Yusuf Ansaris House, Babulal Chawl, Takiapara, Durg, P.S. And Tahsil Durg, District Durg (C.G.)

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(The Address Of The Appellant Has Been Wrongly Mentioned In The Impugned Order, Whereas He Is R/o Ward No. 8, Takiapara, Durg, P.S. And Tahsil Durg, District Durg (C.G.)

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... Appellant

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versus

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1 - Vincent D Souza (Wilson D Souza) S/o Late F. D Souza Aged About 45 Years R/o Takiapara, Durg, P.S. And Tahsil Durg, District Durg (C.G.)

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... Respondent

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(Cause title taken from Case Information System)

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For Appellant	: Ms. Shalini Kashyap, Advocate
For Respondent	: Mr. Ankur Agrawal, Advocate

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Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board

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11/12/2025

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The present first appeal under section 96 of the Code of Civil
Procedure, 1908, filed by the defendant against the impugned
judgment and decree dated 30.07.2013, passed by learned 3 rd
Digitally
signed byVED
VEDPRAKASHDEWANGAN PRAKASHDEWANGANDate: Additional Sessions Judge, Durg, in Civil Suit No. 92-A/2011,
2025.12.15
11:18:53
+0530
whereby the suit filed by the plaintiff has been partly decreed and

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refund of an amount of Rs 2,52,500/- has been ordered and it was also ordered that the amount of Rs. 2,00,000/- shall carry interest @ 6% per annum from 01.12.2012 till its actual payment.

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For the sake of convenience, the status of the parties shown in the suit have been taken in the present appeal also.

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The plaintiff had filed a civil suit for specific performance of the contract dated 09.02.2000, which was allegedly executed between the plaintiff and defendant to sell a triple storied shop situated at Nazul Sheet No. 45-B, Plot No. 21/4, Area 198 sq.ft. situated at Hatari Bazar, Durg for total consideration of Rs. 2,00,000/-. The entire sale consideration was paid to the vendor and the period for registration of the sale deed is fixed as 11 years i.e. up to 08.02.2011. It was also condition in the agreement that, if the defendant failed to get the sale deed registered in favour of the plaintiff, the amount of Rs. 2,00,000/- would be repaid along with the interest @ 2% monthly from 09.02.2000. After 08.02.2011, when the defendant failed to get the sale deed registered in favour of the plaintiff despite his repeated requests, he served a legal notice to the defendant on 30.09.2011 and asked to register the sale deed in his favour, failing which a demand of Rs 7,60,000/- had been made as per the condition of the agreement.

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After receiving the notice, the defendant neither executed the sale deed nor paid any amount to the plaintiff. A public notice was also published in the daily newspaper Dainik Bhaskar on 10.11.2011 with respect to the proposed sale of the suit shop by the defendant to

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another person, and then the present civil suit has been filed on 26.11.2011.

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The defendant contested the claim of the plaintiff and filed his written statement. He denied the plaint averments and pleaded that there was no agreement between the parties and it was a forged document. Though, he admitted in written statement that, the relation between plaintiff and defendant were cordial, however, there was no agreement to sale of the shop of the defendant executed by him. The lease of the suit shop was renewed by the defendant in 2012, and since he was in need of money, he sold the suit shop to another person. He also pleaded in his written statement that, in the first three pages of the agreement, his signature is not there and in the last page of the said agreement, the signature is also not of the defendant, though, it appears to be the defendant's signature.

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The purpose to purchase the stamp paper has also not been mentioned and the excessive time of 11 years to get the sale deed registered is mentioned in the agreement, which is highly suspicious. The said agreement is a forged document and no cause of action arises in favour of the plaintiff. He also pleaded that, the plaintiff was a Ward Member at Municipal Corporation, Durg and due to their cordial relation, he handed over the documents of his property to the plaintiff to deposit the municipal taxes. However, he could not return the original documents by saying that, it was misplaced, and ultimately prepared a forged agreement and filed the present suit. Therefore, the plaintiff is not entitled for any relief.

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7. On the basis of the pleadings of the parties, the learned trial Court

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has framed the following issues:-

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“1. क ् य ा � ् ቚ त�व ि ा �द ी � क� स े ् व ा �त�त ि व ् ा क े � हटर� ब ी ा �ज�र ा ी , द ी �् ቇ � ቝस ኌ ् �� नज�ल श ा �ट क ी ��क े े 45- ब ा � , भ�खण ू ड क ् ��क े े 21/4 क े � ट�क े ़ ቟ � , रक ी े ब ा � 198 व ा ् ቇ �फ�ट �� उस पर ी ी तनत ि � ि � त��ज ि ज ि ल� द ा �क ी े �न / �क े �न क े * 2,00,000/- र ू पय� व ा ा �द ी � स� � ् कर े ी इक े र�र ी न�� ी / तब ि ा क े �न�� तद ि ी न��क े 09-02-2000 क े * तनष ि ् प�तद ि � त ी क ि य े ा � ् ቇ य ा � ?

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2. क ् य ा � ् ቚ त�व ि ा �द ी � न� तव ि ा तह� स�य ि ा �व ा ज ि / क� पश े ् च ा ��2 व ा �द ी � क� प् े ቌ �4 तब ि ा क े �न�� क े � श�� ी क� अन�स�र े ी तव ि ा व ा �तद ि � सम ी पज ् 7 क ि े � प�ज�क ा 8 े � ब ा यन�� नह9 क ा े रव ी ा �य ा � ?

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3. क ् य ा � ् ቚ त�व ि ा �द ी � क े * तव ि ा व ा �तद ि � सम ी पज ् 7 क ि े � रज ी ज ि स ा ट:� ब ् ा यन�� ा , व ा �द ी � क� प् े ቌ �4 कर े �न� ी ह � � तनद ि ;त ी ि श ी � तक ि य े ा � ज�न� च ा ा �तहय ि � ा ?

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4. क ् य ा � ् ቚ त�व ि ा �द ी � ቛ�र ኋ � व ी ा �द ी � क� प् े ቌ �4 तव ि ा व ा �तद ि � सम ी पज ् 7 क ि े � प�ज�क ा 8 े � ब ा यन�� न ा कर े �न� क ी े � ቝस ኌ ् �त� �4 व ि ा �द ी � , ् ቚ त�व ि ा �द ी � स� 2,52,500/- र ू पय� ् ा ቚ �् ቎ कर े न� क ी े � अज ि /क े �र� ी ह= ?

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5. क ् य ा � व ा �द ी � , ् ቚ त�व ि ा �द ी � स� 2,00,000/- र ू पय� पर ा ी इकर े �र ी न�� त ी द ि न��क ी े स� व ा स�ल� �क े द ी * ् ቚ त�श ि � ��ज ी सक ि े क े � दर ी स� ब ी ् य ा �ज ा ् ቚ �् ቎ क े रन� क ी े � अज ि /क े �र� ह= ी ?

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6. क ् य ा � इक े र�र ी न�� त ी द ि ी न��क े 09-02-2000 क�टर े त ी च ि � एव ा ा � स�य - ा ब ा �ज ि /� ह= ?

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7. सह�य ा �� एव ा � व ा �द ी - व ् यय ा ा ?”

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In support of their claim, the plaintiff has examined himself as PW-1

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and Ajay Tiruhuti/PW-2 and relied upon the documents (exhibit P/1), which is the agreement dated 09.02.2000, Exhibit P/2, a legal notice dated 30.09.2011, Exhibit P/3 and P/4 are the postal receipts and acknowledgment, Exhibit P/5 is a public notice published in newspaper, Exhibit P/6 is a notice dated 15.11.2011, Exhibit P/7 is an agreement dated 28.03.1991 executed in favour of the defendant at the time when he purchased the suit shop from Bindabai, Exhibit P/8 is the sale deed, by which the defendant had purchased the suit shop, Exhibit P/9 is the layout of the suit shop and Exhibit P/10 is the permission to raise construction over the land of said suit shop. The

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defendant has examined his witness Anoop Singh Bhatiya/DW-1 and defendant himself Mohammad Shameem as DW-2 and has relied upon the document (exhibit D/1), which is the reply of the legal notice.

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After due appreciation of evidence, led by both the parties, the learned trial Court comes to the conclusion that, the plaintiff has proved that, there was an agreement executed by the defendant on 09.02.2000 to sell the suit shop and obtained the entire sale consideration of Rs. 2,00,000/- and has not get the sale deed registered in his favour. However, instead of passing a decree for registration of the sale deed with respect to suit shop, the decree for refund of the advance amount, damages and interest have been passed in favour of the appellant vide its judgment and decree dated 30.07.2013, which is under challenge in the present first appeal.

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Learned counsel appearing for the appellant/defendant would submit that, the learned trial Court has erroneously held that, there was an agreement executed between the parties on 09.02.2000. She would submit that the execution of agreement has been denied by the defendant in his written statement and from perusal of the document (exhibit P/1), it is clear that, there is no signature of the defendant in first three pages of the agreement and in only last page, the signature of the defendant appears, though he denied that, it is his signature. She would further submit that, the manner in which the contents of the agreement was typed, is also suspicious. She would vehemently submit that the agreement is said to have been executed on 09.02.2000, in which in the address of the plaintiff and

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defendant is shown as “Durg, District Durg (C.G.)”, whereas on 09.02.2000, the State of Chhattisgarh was not in existence and even, it cannot be apprehended that, State of Chhattisgarh would exist on 01.11.2000 or any nearest date. Mentioning the Chhattisgarh State in the address shown in the agreement dated 09.02.2000, itself creates a doubt. She would further submit that, had it been the case, where the agreement was executed after existence of the State of Chhattisgarh, the discrepancy in M.P. or C.G. can be accepted. But in the present case, on 09.02.2000, there was no any rumour that, State of Chhattisgarh would come into existence. She would further submit that, need of 11 years for registration of the sale deed is also a suspicious condition, as the plaintiff has allegedly paid the entire sale consideration and possession of the suit shop was retained with the defendant, then why the plaintiff waited for 11 years for the fruits of Rs. 2,00,000/-, which he has paid as an advance amount towards sale consideration under the agreement. Therefore, the agreement itself is suspicious, which is a created document by the plaintiff and no decree can be passed on the basis of said agreement. Therefore, the appeal may be allowed and the impugned judgment and decree may be set aside.

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Per contra, learned counsel appearing for the respondent/plaintiff vehemently opposes the submissions made by learned counsel for the appellant/defendant and submits that, the defendant except for bald denial, has not put any evidence that, the agreement has not been signed by him. Even, he has not tried to get his signature

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examined by the handwriting expert to prove that, he has not signed the agreement. Even if, there is no signature in the first three pages of the agreement, in the last and operative portion of the agreement, the signature of the defendant is there, which the learned trial Court has rightly considered that, it was the signature of the defendant and he executed the agreement. He would further submit that, despite knowing the fact that an agreement is said to have been executed by the defendant, he has not challenged said agreement that, it was fraudulently executed showing the signature. Since, the relation between plaintiff and defendant was cordial at that time, the plaintiff was waited for such a long time. However, by the lapse of time, when the defendant failed to get the sale deed registered, he filed the suit. The plaintiff's witnesses have proved the execution of agreement as well as payment of sale consideration to the defendant, and therefore, the learned trial Court has rightly come to the conclusion about execution of agreement and payment of amount is the defendant and has passed the decree for the fund of the amount, which does not suffer from any perversity and the appeal is liable to be dismissed.

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I have heard learned counsel for the parties and perused the record of the trial Court.

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The point for consideration in the present appeal would be, whether the judgment and decree passed by learned trial Court with respect to this finding that, the defendant has executed an agreement on 09.02.2000 after obtaining Rs. 2,00,000/- from the plaintiff, is the finding based on proper appreciation of evidence or not?

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The claim of the plaintiff is based on the agreement dated 09.02.2000 (exhibit P/1), which is allegedly executed. In the first page of the agreement, the details of purchaser and seller is mentioned. However, in the last part of their respective addresses, it has been mentioned as “Durg, District Durg (C.G.)”, meaning thereby, on 09.02.2000, the plaintiff had considered that, district Durg is the under the State of Chhattisgarh. The State of Chhattisgarh came into existence on 01.11.2000 by the Gazette Notification dated 25.08.2000 and under the Madhya Pradesh Reorganisation Act, 2000. Admittedly, on 09.02.2000, there was no whisper that, the State of Chhattisgarh would come into existence. Yet, the document shows the addresses that, the parties are residing within the State of Chhattisgarh, with this suspicion that, the document (exhibit P/1) is prepared after coming into existence the State of Chhattisgarh i.e. after 01.11.2000. Yet, another fact of this agreement is that, when the total sale consideration of the suit shop was put to Rs. 2,00,000/- and it is alleged that the entire sale consideration of Rs. 2,00,000/- has been paid to the defendant on 09.02.2000 itself, then why the sale deed could not have been registered in favour of the plaintiff on that day itself, when the entire sale consideration was paid to him, and why the period of 11 years had been fixed, particularly when the defendant is in possession of the suit shop. One can understand that, the plaintiff could have waited for 11 years, when he was put in possession of the suit shop, but it is not the case here. The defendant is in possession of the suit shop throughout the time, and such a long period for registration of the sale deed is also one of the suspicious circumstances in the

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agreement.

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PW-1, the plaintiff has stated in his evidence that, when the defendant has failed to get the sale deed registered in his favour, he issued a legal notice for the same or else pay the amount of Rs. 7,60,000/-, which was the amount paid to the defendant along with the interest under the said agreement. He also came to know on 10.11.2011, that the defendant is trying to alienate the suit shop to a third person. Thereafter, he filed the suit claiming Rs. 2,52,000/- by waiving the remaining claim. In cross examination, he admitted that the defendant is his childhood friend. He could not explain, as to why the signature of the defendant have not been taken in first three pages of the said agreement. In the year 2000, when the defendant had given him the original documents of the suit shop, he came into knowledge that, it was the nazul land, over which the suit shop was situated. He paid Rs. 2,00,000/- in cash to the defendant, which was obtained by him from his mother-in-law. The transaction was made in his house and he also paid the amount to the defendant in his own house. He explained that the period of 11 years was fixed on the instance of the defendant that, if he would be able to repay the amount in the meantime, he would repay the same to the plaintiff. Otherwise, he would get the sale deed registered in his favour.

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PW-2 Ajay Tiruhuti is the witness to the said agreement (exhibit P/1). He stated in his evidence that, he did not know as to what was the pages of the agreement and when the stamp paper was purchased and who had purchased it. He did not know any number of the land. He also could not explain, as to why the period of 10-12 years was

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fixed for registration of the sale deed. Since, he was a neighbour, therefore he has signed the agreement (exhibit P/1).

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The defendant has stated in his evidence that, he was well acquainted with the plaintiff and both of them were having cordial relations since their childhood. He has not admitted his signature over the said agreement (exhibit P/1). Though, he was crossexamined with respect to the different stamp papers, but he showed his ignorance about its transaction. He also denied that after 08.02.2011, the plaintiff had requested him for registration of the sale deed. He further admitted that, he sold the suit shop for the total consideration of Rs. 20 lakhs to Balraj Magnani.

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The learned trial Court , while considering the issue No.1 with respect to the execution of the agreement, has considered that, the plaintiff has not examined his signature by the handwriting expert, for which adverse inference can be drawn against him, which appears to be erroneous. When the constitution of the agreement itself is suspicious and raises doubt over its authenticity and the defendant has denied his signature, it is for the plaintiff to prove that the said agreement was validly executed, even if the defendant could not examine his signature by the handwriting expert. Even if it is found proved that, in the last page of agreement , the signature is of the defendant’s signature, the contents of the agreement is also ought to have been proved by the plaintiff merely admitting the signature or failing to prove that his signature is not there in the agreement , would not be sufficient to draw an adverse presumption against the defendant, when the other things are in his support.

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All the aforesaid factors i.e. the State of Chhattisgarh was not in existence on 09.02.2000, when the agreement is said to have been executed, yet it has been mentioned the existence of State of Chhattisgarh, despite paying the entire sale consideration, the period for registration of the sale deed was fixed as 11 years, and there is no signature over first three pages of the agreement of either the defendant or the plaintiff, which makes the agreement suspicious, therefore, this Court is of the opinion that, the plaintiff has failed to prove that, the agreement was validly executed between the parties on 09.02.2000, and the finding recorded by the learned trial Court is perverse to the evidence available on record.

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Since, the sole basis of claim of the plaintiff is, on that agreement (exhibit P/1) and the learned trial Court has also awarded refund of Rs. 2,52,500/- along with the interest over an amount of Rs. 2,00,000/- @ 6% per annum from 01.12.2012 till its payment, cannot be awarded against the defendant, as the execution of agreement and payment of advance amount under the agreement, is not found proved.

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Accordingly, impugned judgment and decree passed by the learned trial Court is set aside, the appeal filed by the appellant is allowed and the suit of the plaintiff is hereby dismissed .

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Parties to bear their own costs.

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An appellate decree be drawn accordingly.

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Sd/- (Ravindra Kumar Agrawal) Judge

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ved

Mohammed Shamim v. Vincent D Souza Wilson D Souza

Case brief

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Mohammed Shamim v. Vincent D Souza Wilson D Souza

Case brief

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