1 2025:CGHC:12114 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 109 of 2020 1 - Munnalal S/o Gulab Prasad Jaiswal Aged About 51 Years R/o Mamta Na- gar, Ward No. 17, Tahsil And District Rajnandgaon Chhattistgarh. ... Appellant/plaintiff versus 1 - Ghanaram Sinha S/o Mangluram Sinha Aged About 61 Years R/o Village Kotrasrar, Tahsil Dongargaon, District Rajnandgaon Chhattisgarh. ... Respondent/Defendant For appellant : Mr. Parag Kotecha, Adv. For Respondent : None, though served. Hon'ble Shri Justice Naresh Kumar Chandravanshi JUDGMENT ON BOARD 7-3-2025 1. This first appeal has been filed by the appellant/plaintiff under Section 96 of the Civil Procedure Code, 1908 (henceforth, referred to as ‘CPC’), challenging the judgment and decree (Annexure A-1) dated 3-1-2020 passed by the 1st Additional District Judge, Rajnandgaon in Civil Suit No. 5B/2017, whereby the civil suit filed by the appellant has been dismissed. (hereinafter, parties would be referred as per their status shown in the plaint.) Digitally signed by AVANISH KUMAR PATHAK Date: 2025.03.12 13:42:19 +0530 2 2. Facts of the case in nutshell are that, on 8-1-2013, respondent/defendant claiming himself to be owner of land bearing Khasra No. 1/3 area 2.13 acre, situated at village Kotrasarar, P.H. No. 23, Tahsil Dongargarh (henceforth referred to as ‘suit land’), entered into agreement to sell (Ex. P-2) the suit land to the plaintiff for sale consideration of Rs. 8 lakhs per acre and on same day i.e. on 8-1-2013, he obtained Rs. 1 lakh as advance amount from plaintiff and executed agreement to sell in his favour. Subsequently, he again received 2,20,000/- from plaintiff. Registered sale deed was to be executed between 8-1-2013 to 7-7-2013, but since in revenue record, aforesaid land was recorded on the head of Vazib-ul-Arz and there were other co-owners of aforesaid land, hence, defendant alone had no right to enter into agreement to sell, therefore, registered sale deed could not be executed. Subsequently, on 18-11-2013, defendant executed second agreement to sell (Ex. P-1) in favour of plaintiff admitting therein that, since aforesaid land was recorded on the head of Vazib-ul-Arz in revenue record, therefore, he will get corrected revenue record and thereafter he will execute registered sale deed in his (plaintiff ) favour. But defendant did not comply with aforesaid commitment, hence, plaintiff had filed police complaint against defendant. It is further pleaded by the plaintiff, that he has been cheated by the defendant, therefore, by filing instant civil suit, he prayed that, advance amount paid by him to the defendant be returned to him along with interest of 18% per annum. 3. In written statement, defendant admitted execution of agreement dated 8-1-2013 (Ex. P-2) in favour of plaintiff. He has also admitted that he has received Rs. 3,20,000/- as an advance amount from plaintiff but he has 3 denied that he has cheated plaintiff, rather as per him, he is still ready to execute registered sale deed as per agreements Ex. P-2 dated 8-1-2013 and Ex. P-1 dated 18-11-2013. Hence, apellant/plaintiff is not entitled to get any relief. 4. On the basis of pleading of both the parties, learned trial Court framed as many as 4 issues, recorded evidence of parties and after considering the evidence and contention of the parties, dismissed the civil suit filed by the plaintiff on the ground that, the plaintiff has failed to prove any document to demonstrate the fact that, said disputed land was recorded on the head of Vazib-ul-Arz in the revenue record, and defendant is still ready and willing to perform his part of contract, as such, plaintiff himself was responsible for non-performance of contract, therefore, he is not entitled to get the relief sought for by him. 5. Learned counsel for the appellant/plaintiff submits that, the trial Court has held proved that, agreement (Ex. P-1) was executed between plaintiff and defendant and in pursuance of that agreement, Rs. 3,20,000/- was received by the defendant from plaintiff as advance amount, but the trial Court has declined to grant decree in favour of plaintiff only because, he has not exhibited any document to prove the contention that disputed land was recorded on the head of Vazib-ul-Arz in revenue record, but this fact has been admitted by defendant himself in agreement (Ex. P-1) dated 18-11-2013 itself, which has also been proved by the plaintiff and his witnesses, therefore, learned trial Court ought to have ordered to refund the advance amount. He further submits that, since transaction was in respect of 4 immovable property, therefore, it cannot be said that, because of non- performance of contract, defendant had suffered any loss. He has also neither pleaded nor proved such fact, hence, learned counsel submits that, the appeal may be allowed by setting aside the impugned judgment and decree, and relief sought for by the plaintiff may be allowed in his favour. 6. Despite service of notice, respondent/defendant is neither present nor represented by any counsel. 7. Undisputedly, defendant has admitted in his pleading as well as in his deposition also that, he has executed two agreements in favour of plaintiff i.e. on 8-1-2013 and 18-11-2013, Ex. P-2 and Ex. P-1 respectively. He has also admitted that in pursuance of that agreement to sell, he had obtained Rs. 3,20,000/- as advance amount from plaintiff, but sale deed could not be executed because, as alleged by the plaintiff, it was recorded on the head of Vazib-ul-Arz in the revenue record and it is also contention of the plaintiff that, there are other co-owners also of the disputed land. Though no specific suggestion has been taken from defendant in his cross- examination but he has admitted execution of agreement (Ex. P-1) dated 18- 11-2023, in which, he has specifically admitted that, disputed land is recorded on the head of Vazib-ul-Arz in the revenue record, which he would get corrected by filing application. He has also admitted in para 10 of cross- examination that, disputed land is recorded in his name along with his sister, but he has further stated that, name of his sister was struck down in the year 2013-14. Perusal of aforesaid fact and particularly contents of agreement (Ex. P-1) shows that since disputed land is said to be recorded in the revenue 5 record on the head of Vazib-ul-Arz, which was admitted by defendant himself in agreement (Ex. P-1) dated 18-11-2013, therefore, sale deed could not be got executed. If it was not so, then the question arises that why second time, agreement (Ex. P-1) dated 18-11-2013 was executed by the defendant admitting therein said fact about Vazib-ul-Arz. Though, plaintiff has not filed revenue record to prove aforesaid fact, but having considered aforesaid fact and document particularly agreement Ex. P-1 dated 18-11-2013, on the preponderance of probability, it seems that because of the fact that disputed land was recorded on the head of Vazib-ul-Arz in the revenue record, therefore, registered sale deed could not be got executed by the plaintiff. Therefore, holding liability upon the plaintiff for non-filing of document for granting decree in his favour, is not found to be proper and lawful. As such, the finding of learned trial Court that plaintiff is not entitled to get back advance amount of Rs. 3,20,000/- from the defendant is found to be perverse and illegal, hence the same is set aside. 8. Since it is proved that, defendant has received Rs. 3,20,000/- from plaintiff as advance amount against the agreements Ex. P-1 dated 18- 11-2013 and Ex. P-2 dated 8-1-2013 and sale deed has not been got executed in favour of plaintiff in furtherance of agreement, therefore, if the defendant keeps disputed land with him along with advance amount also, then it will be bonanza in his favour. Whereas, he has neither pleaded nor proved that because of non-compliance of agreement, he has suffered any loss. There is no mention of forfeiture of advance amount in second agreement also and further, as per agreement itself, defendant had agreed that, after correction of revenue record from Vazib-ul-Arz to his name within 3 6 months, he will execute registered sale deed in favour of the plaintiff, but this process has not been proved to be completed by him, therefore, I feel inclined to allow this appeal. 9. Consequently, the impugned judgment and decree (Annexure A- 1) dated 3-1-2020 passed by the 1st Additional District Judge, Rajnandgaon in Civil Suit No. 5B/2017, is set aside. The respondent/defendant is directed to refund the advance amount of Rs. 3,20,000/- to the appellant/plaintiff within 60 days from today along with interest at the rate of 8% per annum from the date of filing civil suit i.e. from 17-11-2016 till its realization. 10. It is further directed that, expenses of litigation of plaintiff of this Court shall also be born by the respondent/defendant along with his own expenses. 11. Accordingly, this appeal is allowed. 12. Decree be drawn accordingly. 13. Pending application(s), if any, stands disposed of. Sd/- (Naresh Kumar Chandravanshi) Judge Pathak