1 2025:CGHC:21258-DB Reserved on 28.02.2025 Pronounced on 08.05.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 47 of 2024 1 - Smt. Savita Shukla W/o Late Ashok Shukla Aged About 71 Years 2 - Smt. Archana Pandey D/o Late Dr. Ashok Shukla, W/o Sanjeev Pandey Aged About 53 Years 3 - Ashutosh Shukla S/o Late Dr. Ashok Shukla Aged About 50 Years R/o Gurukripa Gali No. 2, Near Danganiya Talab, Shanti Vihar Colony Danganiya Raipur, Tah. And Distt. Raipur, Chhattisgarh 4 - Smt. Arti Ojha D/o Late Ashok Shukla, W/o Shri Krishna Ojha Aged About 50 Years All R/o Gurukripa Gali No. 2, Near Danganiya Talab, Shanti Vihar Colony Danganiya Raipur, Tah. And Distt. Raipur, Chhattisgarh ... Appellants versus 1 - Smt. Shweta Mishra W/o Shri Shailesh Tiwari Aged About 42 Years R/o I. 701, Maruti Life Style, Kota Raipur, Tah. And Distt. Raipur, Chhattisgarh ... Respondent(s) For Appellants : Mr. H. B. Agrawal, Sr. Adv along with Ms. A. Sandhya Rao, Adv For Respondent(s) : Mr. B. P. Sharma, Mr. K. N. Singh, Advocates DB: Hon’ble Smt Justice Rajani Dubey Hon’ble Shri Justice Sachin Singh Rajput C A V Judgment Per Sachin Singh Rajput, J 1. This First Appeal has been filed under Section 96 of Civil Procedure by the appellants/defendant against the judgment and decree dated 31.01.2024 passed by 14th Additional District Judge, Raipur in Civil Suit No. 15-A/2020, whereby learned trial Court has allowed the suit filed by 2 plaintiff/respondent, and directed the defendants /appellants to execute the agreement and also directed to plaintiff/respondent to pay remaining amount within two months and thereafter, registered sale deed has to be executed. Against this order the defendant/appellants have filed the present first appeal. 2. For the sake of convenience, the names of parties shall be referred to in terms of their status as per trial Court. 3. The brief facts as reflected from the record are that the respondent/plaintiff has filed the civil suit against the appellants claiming ¼th undivided property of Dr. Ashok Shukla, situated in Ward No.19, Shakti Bazar Raipur, Tahsil and District Raipur, bearing land and building No.165/1 and mentioned in claim Schedule-A denoted by redline and BIJKLMNOFETC & V has filed civil suit for specific performance of contract vide agreement dated 07.04.2019 and also permanent injunction. Originally suit was filed by plaintiff against Dr. Ashok Shukla who during pendency of suit died and in place of him, the present appellants were made party. The case of plaintiff/ respondent is that Late Dr. Ashok Shukla and his brothers Dr. Arun Shukla, Ajay Shukla and sister-in-law Bharti Shukla w/o Late Ashwani Shukla were having the above suit land and building as per Schedule-A of the plaint, which was purchased by mother of defendants/ appellants Dr. Ashok Shukla during his lifetime by registered sale deed dated 31.08.1956. It is further contended that land and building share 1/5th share was taken by oral partition by co-owner Arun Shukla from his brothers and sister-in-law. The map annexed with plaint A,B,C,D,E,F,G,H & I is 815 sq.ft. in area after leaving that remaining part shown by red line and & BIJKLMNOFETC & V are the undivided land and building of Dr. Ashok Shukla, his sister-in-law Bharti Shukla, Arvind Shukla and Ajay 3 Shukla jointly. The said undivided land was aggrieved to be sold by Ashok Shukla, his brothers and sister-in-law Bharti Shukla for Rs. 2 crore and paid advance of Rs. 5 lacs each have given 20 lacs and executed agreement dated 07.04.2019. The sale was to be executed upto 30.06.2019 after taking balance money. On 16.10.2019, deceased defendant Dr. Ashok Shukla, his sister-in-law Bharti Shukla and brothers Arvind Shukla and Ajay Shukla have executed the sale deed of undivided 3/4th share in the name of plaintiff and Smt. Vibha Tiwari. Since the name of Arun Shukla brother of deceased Dr. Ashok Shukla was also recorded in Government records, therefore, he has also filed agreement dated 07.04.2019 and he is also ready to sign at the time of execution and registration of the sale deed. It is further contended that the plaintiff was always ready and willing to abide by agreement dated 07.04.2019 and for this she also sent a notice through advocate on 18.06.2019 & 24.06.2019 to the defendants/ deceased Dr. Ashok Shukla, his brothers and sister-in-law to be present at the registration office on 29.06.2019 along with necessary documents for execution of sale deed. Even after that, the deceased defendant Dr. Ashok Shukla, his brother and sister-in-law did not appear at registration office. On 26.07.2019, the plaintiff again sent a notice to the deceased defendant Dr. Ashok Shukla, his brothers and sister-in-law to be present at registration office with necessary documents to execute the sale deed on 31.07.2019. The notice dated 26.04.2019 was replied by defendants through their advocate on 31.07.2019 and denied to sale their ancestral property. Again on 13.08.2019, 15 days time was given for execution of sale deed. It is further contended that on 16.10.2019, except Dr. Ashok Shukla remaining brothers and sister-in-law have executed sale deed in favour of plaintiff and Vibha Tiwari. The objection was made by Dr. Ashok 4 Shukla regarding deficit payment of stamp duty, which was rejected on 10.02.2020 by Collector of Stamp Raipur. It was further pleaded that since the deceased Dr. Ashok Shukla did not perform his part of contract, therefore suit has been filed against Dr. Ashok Shukla for specific compliance of the agreement dated 07.04.2019 and permanent injunction in respect of disputed land and building. 4. Later on LR's of Dr. Ashok Shukla i.e. appellants/ defendants No.1 to 4 have brought on record. Defendants No. 1 & 3 filed written statement and denying the averments made by plaintiff alleging that deal to sell was made only by Ajay Shukla- younger brother of Dr. Ashok Shukla and he told the defendant Dr. Ashok Shukla that the deal was made for Rs. 2 crore, while the actual deal was fixed for Rs. 4 crore, therefore Dr. Ashok Shukla has canceled the agreement to sale, since plaintiff was not in town, the notice could not be served to her, therefore on 09.06.2019 in daily news paper cancellation notice was published. Originally as per agreement dated 07.04.2019, only one month time can be extended, otherwise the purchaser will get back advance money paid by him to the concerned seller. Since the agreement dated 07.04.2019 was signed by deceiving Ashok Shukla and manipulating the amount, therefore he was not ready and willing to sell his share to the plaintiff. Dr. Ashok Shukla, believing the words of his brother, signed the agreement dated 07.04.2019 without reading it. He had asked the plaintiff to cancel the deal and return the advance money by giving notice to the plaintiff before the plaintiff’s notice dated 18.06.2019 & 24.06.2019 and by publishing a notice in the daily newspaper on 09.06.2019. The details of the plaintiff’s map have been shown incorrectly, the area of the disputed building has been shown as 4075 Sq. Ft. in the map, whereas the actual area is 3500 Sq. Ft. and the plaintiff has made an 5 agreement for a larger area, hence the plaintiff has not complied with the specified terms of the contract. The plaintiff has not executed and registered the sale deed within the time period prescribed in the agreement. Therefore, the suit of the plaintiff liable to be dismissed. 5. On the basis of above broad pleadings, the learned trial Court framed following five issues:- 1. Whether the agreement dated 07.04.2019 was executed in favour of plaintiff by deceased defendant Dr. Ashok Shukla, his brothers and sisters- in-law regarding the suit land and suit premises No.165/165/1 Ward 39, Satti Market Raipur attached to the plaint which is marked in the map enclosed with the plaint marked as A by red line and B, I, J, K, L, M, N, O, F, E, T, C and V, after receiving the sale consideration for Rs. 20,00,000/- ? 2. Whether the plaintiff has always been ready and willing to execute her part of contract ? 3. Whether the plaintiff has entitled to get a decree of specific performance of contract against the defendants ? 4. Whether the plaintiff has entitled for permanent injunction regarding the suit land and the suit premises against the defendants ? 5. Relief and cost ? 6. In order to prove his pleadings the Plaintiff has examined as many as two witnesses and on the other hand, defendants examined as many as two witness. 7. The learned trial Court by its impugned judgment and decree dated 31.01.2024 allowed the suit holding that the plaintiff has established his case against the defendants for grant of decree for specific performance. 8. Learned counsel for the appellants/ defendants submits that it is not in dispute that agreement Ex. P/1, dated 07.04.2019, was signed by Dr. Ashok 6 Shukla also but he has raised objections that he was not in correct mental stage and has not taken advice from family members before signing agreement, therefore notice dated 14.05.2019 was issued as Exhibit D/1, to be remaining parties of agreement namely Smt. Bharti Shukla, Dr. Arvind Shukla, Ajay Shukla & Smt.Shweta but none of them has applied the same, therefore agreement is not endorsable because it was not according to freewill of Dr. Ashok Shukla who was the original defendant. He further submits that the agreement was made for Rs. 4 Crore but it was intimated to him that it was for only Rs. 2 Crore likewise area shown is also different because in agreement it was shown to be 4075 Sq.ft. while it is 3,500 Sq.ft only as per registered sale deed purchase area was shown as 2445 Sq.ft. while total area is 3,500 Sq.ft, therefore 4 persons ought to have sold 2800 Sq.ft. only but they have sold land at 2445 Sq.ft. out of 3260 sq.ft. is also wrong, therefore as per Section 16(C) of Specific Relief Act, the agreement was in force and since as per agreement part proved in Court, it is clear that the amount was payable within 30.06.2019 and at the most one month time could be extended was to be strictly followed, since admittedly any seller was not paid amount of balance consideration upto 15.10.2019, i.e. sale deed exhibit P/2, therefore readiness and willingness from the side of defendants was lacking, therefore as per agreement to sale was canceled and only relief of refund of consideration at Rs. 5,00,000/- could have been made, therefore in absence of readiness and willingness to pay the balance consideration, the decree of specific performance is liable to set-aside and considering the exhibit D/1, only decree of refund of advance consideration of Rs. 5,00,000/- could have been cost. Hence, decree for specific performance against appellants/ defendants be quashed and refund be ordered accordingly. 7 9. Learned counsel for the plaintiff/ respondent submits that learned trial Court has meticulously examined the evidence available on record and decided the issues in favour of respondent. He submits that the issue No.1 with regard to execution of agreement to sale was duly proved by evidence of plaintiff- Shailesh Tiwari (PW-1) and Adarsh Sharma (PW-2). Likewise issue No.2 with regard to readiness and willingness was also found proved by the learned trial Court. The other stakeholders of the agreement have already honoured the agreement to sale and executed the sale deed in favour of the respondent. Therefore, the appeal has no merit and liable to be rejected. 10. We have heard learned counsel for the parties and perused the record. 11. The issue No.1 is formulated in respect of execution of agreement to sale dated 07.04.2019 in respect of suit property, the burden to prove this issue was upon the respondent. PW-1 Shailesh Tiwari has categorically deposed that he put his signature as a witness in the agreement to sale Ex.P-1, the said agreement to sale was corroborated by the statement of Adarash Sharma (PW-2) who also a witness of agreement to sale. Even otherwise, the execution of agreement to sale Ex. P-1 and receipt of Rs. 5,00,000/- as advance amount have not been denied by the appellants, therefore, the finding recorded by the trial Court in respect to issue No.1 appears to be based on proper appreciation of evidence and it is hereby affirmed. The important issue No.2 is with regard to readiness and willingness on the part of the respondent for agreement to sale. This issue is required to be proved by the respondent. 12. From the evidence of the appellant, it is quite evident that the agreement to sale was executed on 07.04.2019 (Ex. P-1). The agreement was signed by owners of the suit properties i.e. sellers and purchasers i.e. the respondent. 8 The agreement to sale was also witnessed by two persons who were examined by the respondent. Recital of agreement indicates that on failure to make the payment of remaining sale consideration and execution and registration of the sale deed, the period of sale agreement can be extended to one month and thereafter the deal deemed to be canceled. The advance amount would not be refundable from the sellers. Ex. P-4 is a registered notice dated 18.06.2019 which indicates that the respondent was ready and willing to execute the sale deed and requested the seller to execute the sale deed. From the record it appears that after receipt of this notice another notice was issued as Ex. P-15 whereas the sellers were requested to appear before the Registrar Office, Raipur on 29.07.2019 and bring all the necessary documents for execution of sale deed. It appears that thereafter another notice was issued requesting the sellers to appear before the Registrar office on 31.07.2019 for execution of sale deed. The notice was replied by the deceased defendant Dr. Ashok Shukla through his advocate stating that he is ready to return back the advance amount of Rs. 5,00,000/- along with interest and canceled the agreement to sale. The record also reflects that four owners of the suit property have executed the sale deed of their portion in favour of the respondent, however, the deceased defendant Dr. Ashok Shukla did not execute the sale deed. Thereafter the suit was filed which was decreed. From the statement of plaintiff’s witnesses, it is quite vivid that in due course of time demand was made to execute within the time stipulated in the agreement, legal notices were sent to execute the sale deed, however, the deceased defendant Dr. Ashok Shukla did not execute the sale deed. The learned trial Court on assessment of evidence gave a categorical finding that the respondent was ready and willing to perform her part of sale agreement. 9 13. Arguments were raised by Mr. Agrawal that the sale agreement was for Rs.4 Crore whereas it was shown to be only Rs. 2 Crore, therefore, the deceased defendant Dr. Ashok Shukla refused to execute the sale deed. This submission cannot be accepted as all the owners of the suit property with open hand executed the sale agreement and received advance amount also. The other argument was advanced that the time is the essence of the contract, but from the record it is quite evident that within the time stipulated in the agreement, the notice was issued and thereafter this civil suit was filed. Therefore, this submission also does not help the appellant. The learned trial Court from perusal of evidence available on record decreed the suit and the findings recorded appears to be based on proper appreciation and do not find any merit in this case, therefore, the appeal has no merit liable to be and is hereby dismissed. 14. Decree be drawn accordingly. No cost. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Parul PARUL MITTAL Digitally signed by PARUL MITTAL Date: 2025.05.08 14:38:51 +0530