1 2025:CGHC:45751-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 03.07.2025 Judgment delivered on: 09.09.2025 FA No. 30 of 2017 1 - Ramesh Kumar Agrawal, S/o Late Shri Ishwar Lal Agrawal, Aged About 43 Years, R/o Near P.G.B.T. College, Old High Court Road, Ramesh Book Depot, Near Shiv Talkies, in Front of Mama-Bhanja Talab, Bilaspur, Tahsil & District Bilaspur, Chhattisgarh ..............Defendant, ... Appellant versus 1 - Kamal Kishor Chhabra, S/o Hajari Lal Chhabra, Aged About 40 Years Occupation- Business, R/o Deepupara, Tarbahar Bilaspur, Liberty Electronics, Main Road, Budhwari Bazar, Tahsil & District Bilaspur, Chhattisgarh. 2 - State of Chhattisgarh, Through The Collector, Bilaspur, District Bilaspur, Chhattisgarh ................Plaintiffs, ... Respondent(s) For Appellant : Mr. Kishore Bhaduri, Sr. Advocate along with Mr. Harsh Dave, Mr. Abhyuday Singh & Mr. Sunny Agrawal, Advocate For Respective Respondent(s) : Mr. Prafull N. Bharat, Sr. Advocate and Advocate General along with Mr. Akash Pandey and Mr. Keshav Dewangan, Advocates 2 Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Amitendra Kishore Prasad C A V Judgment Per Rajani Dubey, J. 1. The instant appeal has been filed by the appellant challenging the judgment and decree dated 24.10.2016 passed by learned Additional District Judge, Bilaspur in Civil Suit No. 16-A/2012 whereby the learned trial Court allowed the suit filed by the plaintiff/respondent for specific performance of contract holding that as per agreement dated 14.02.2005, the plaintiff is entitled to get the registered sale deed of the suit land executed in his favour by paying the remaining sale amount of Rs. 15,88,949/- to the defendant No.1. Therefore, the defendant No.1 is instructed to receive the said sale amount and execute the registered sale deed of the suit land in favour of the plaintiff within 2 months from the date of judgment. In case of non-compliance, the plaintiff can get the sale deed of the suit land executed in his favour through the Court. The plaintiff, after specific performance of the contract, upon execution of the sale deed in his favour and upon acquiring title to the suit land, shall be entitled to obtain possession of the suit land in accordance with law by filing a suit for partition against the other shareholders. The parties to this appeal shall be referred herein as per their description before the learned family Court. 2. The facts of the case as mentioned in the appeal, are that the plaintiff/respondent No.1 Kamal Kishore Chhabra had filed a suit for specific performance of contract against the present appellant stating that the present appellant is owner of the land bearing P.C. No.22, Khasra No. 522/1, Khewat No. 202, admeasuring 50x40 2000 sq.ft. 3 situated at Juna Bilaspur, within Municipal limits Bilaspur, Tahsil & District Bilaspur (C.G.) and the agreement was entered between the appellant and the respondent No.1 for purchasing above land for a sale consideration of Rs. 16,00,000/- and against the said consideration, a token amount of Rs. 11,051/- was paid to the appellant on 14.02.2005. It was agreed that the remaining amount would be paid at the time of registration. Further case of the plaintiff is that the present appellant had promised him that the sale deed would be executed after mutation of appellant's name in revenue records. The present appellant had informed the plaintiff/ respondent No.1 herein that some dispute with regard to the suit property is pending with the relatives of the original owner, therefore, he is unable to mutate his name in the revenue records and in support of the said contention, the appellant had produced the photostate copy of the sale deed of the previous owner and an affidavit in support of it. Further case of the plaintiff is that in June, 2005, when he came to the notice of the fact that the present appellant was trying to transfer the suit property to other person, he contacted the appellant and informed him that he is ready and willing to perform his part of contract and requested the appellant to appear before the Sub Registrar on 14.06.2005 for fulfilling the formalities of registration of sale deed. It was alleged by the plaintiff in the suit that the appellant/respondent No.1 failed to appear before the office of Sub Registrar on the said date and as such for such failure, the respondent No.1/ plaintiff issued a notice to the appellant/defendant No.1 on 05.07.2005 granting 7 days time from receipt of the notice for execution of the sale deed. The appellant/defendant No.1 responded to the notice on 13.07.2005 4 explaining the contingencies of the contract and the factual situation and promised to present himself before the Registrar on 22.07.2005, but the appellant again failed to appear and comply with the terms of the reply. It was further alleged by the respondent No.1/plaintiff that on 22.07.2005, the defendant No.1 /appellant had sent a notice to the plaintiff/respondent No.1, whereby the defendant/appellant sought further 15 days time for registration of sale deed and also stated that the dispute with regard to the said property is going on between the parties, therefore, he is unable to execute the same, which was against the agreement dated 14.02.2005. On 22.08.2005, the plaintiff/respondent No.1 had lodged a complaint against the present defendant No.1/appellant before the Police Station- Tarbahar stating that the defendant No.1/appellant despite decision of the civil suit between the original owner and the appellant and even after passing of the order by the High Court, the appellant is not executing the sale deed in favour of the respondent No.1. Therefore, again on 10.09.2008, the respondent No.1/plaintiff through his Advocate issued a legal notice to the appellant/defendant No.1 but the appellant failed to reply and therefore the suit was filed for specific performance of contract. 3. On the other hand, in his written statement, the appellant/ defendant No.1 submitted as a defence that a civil suit was previously pending inter se between the owner of suit property and it was sold to the appellant/defendant with such litigation. The contention of the defence was further that the matter was pending before the High Court of Chhattisgarh at Bilaspur in appeal and thus, the possession of the property was required to be obtained. The defendant No.1/appellant further contended that he categorically had submitted the 5 plaintiff/respondent No.1 that he is required to take possession of the property after decision of the dispute inter se between the owner and the moment the dispute is decided, the sale deed would be executed in favour of the plaintiff/respondent No.1 on 14.06.2005. Besides this, it was contended by the plaintiff that the suit property since was in dispute right from inception and performance of which was dependent on the decision of the said suit, therefore, the suit was in-fact not maintainable at that stage. It was submitted by the appellant/ defendant No.1 that his power of attorney holder Rajendra Kumar Pandey by misusing the power of attorney had executed a sale deed on 23.10.1984 in favour of one Shobhalal Prajapati for a part of that suit property. Therefore, in totality it was submitted by the defendant that the entire contract was a contingent contract performance of which, since had dependent on happening of certain contingency, therefore, the suit for specific performance as had been filed by the plaintiff respondent was not maintainable. The appellant/defendant No.1 has further claimed damages of Rs.25,000/-. 4. The learned trial Judge after considering both the contentions had framed seven issues, "one of which was deleted during pendency of the civil suit" and considering the rival contentions, it was decreed by the learned trial Judge that the plaintiff/ respondent No.1 was entitled to sale deed of the said property. Hence, this appeal. 5. Learned counsel for the appellant submits that the learned trial Court committed an error of fact while considering the case and thus failed to appreciate the fact that the appellant had purchased the property in form of an undivided share from the joint property during pendency of a litigation and unless the property could be decreed in his favour, the 6 appellant could not have performed his part of contract. The learned trial Court failed to appreciate the fact that during subsistence of the contract and/or at the time of execution of the contract, the litigation inter se between the original owner and the appellant was pending decision in the High Court. The learned trial Court ought to have appreciated the fact that the power of attorney holder of the appellant, who was introduced by the respondent for settlement of the dispute, had already transferred 1000 sq.ft. of land to a third party by a registered deed of sale who in turn had further sold 600 sq.ft. of land to another. Thus, on the facts it was impossible for the appellant to perform the contract in absence of a prayer for cancelation of those sale deeds. The learned trial Judge committed error of law by wrongly appreciated the fact that the agreement was in fact a "contingent contract" and could have been performed only on happening of the contingency i.e. only on happening of the property coming out of the litigation inter se with the previous owner. The learned trial Court committed error of law by decreeing the case of specific performance of contract in favour of the plaintiff. Therefore, the impugned judgment is liable to be set aside. Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Pemmada Prabhakar and others Vs. Youngmen’s Vysya Association and others reported in (2015) 5 SCC 355 and Moreshar Yadaorao Mahajan vs. Vyankatesh Sitaram Bhedi (D) THR. LRS. And others; 2022 LiveLaw (SC) 802. 6. On the other hand, learned counsel for respondent No.1/plaintiff supports the impugned judgment and submits that the learned trial Court minutely appreciated oral and documentary evidence properly 7 and rightly passed the decree in favour of the respondent. Appellant/defendant No.1 has remained party in previous suits and as well in previous litigations and therefore, he had every knowledge about previous litigation and despited that he executed contract in favour of respondent No.1/ plaintiff and received earnest money from him. Therefore, learned trial Court rightly passed the decree in favour of respondent No.1/ plaintiff. The impugned judgment is well merited and does not call for any interference by this Court. Reliance has been placed on the decisions of Hon’ble Supreme Court in the matter of Hanumappa Chennappa Hullur (D) By LR’s Vs. Shivamaruthappa Parappa Kalli & Ors. reported in (2015) SAR (Civil) 1083, Ganga Saran Vs. Ram Charan Ram Gopal; (1952) AIR (SC) 9 and K. Prakash Vs. B.R. Sampath Kumar; (2015) AIR (SC) 9. 7. Heard counsel for the parties and perused the material placed on record including the impugned judgment. 8. It is an admitted position before the learned trial Court that defendant No.1 has agreed to sale a part of Khasra No. 552/1 area 2000 sq. feet in P.H. No. 22 (Mouza Juna) Bilaspur District Bilaspur situated on main road of Shiv Talkies within the area of Municipal Corporation Bilaspur for a sale consideration of Rs. 16 lakhs out of which he had received an advance of Rs. 11,051/- on 14.02.2005 and the remaining amount of Rs.15,88,949/- was to be given at the time of registry. 9. The appellant/defendant No.1 had promised that the sale deed would be executed after mutation of appellant’s name in revenue records and appellant/defendant No.1 had informed the respondent No.1/plaintiff that some dispute with regard to the suit property is pending with the relative of the original owner therefore, he is unable to mutate his name 8 in the revenue records and in support of such contention, the appellant had produced photostate copy of sale deed of previous owner and affidavit in support of it. 10. On the basis of pleadings of both the parties, the learned trial Court framed 7 issues and out of which, 1, 2 and 4 which are significant issues read as under:- क्र० वाद प्रश्न निनष्कर्ष 1. क्या वाद वादभूनि क निवाक्रया पंजीयान प्रनिवाद क्र० 01 से अनबंध निदनक 14.02.2005 क अनसेर अपंन पंक्ष करन क अधिधकर है#? "प्रनि$" 2. था क्या वाद वादभूनि क कब्जी सेनिवाद क निवानिननिद ष्ट पंलन पंश्चा प्रप्त करन क अधिधकर है#? " आंनि,क प्रनि$ 4. क्या वादभूनि क अ, ,-भूलल वा निकसे अन्या व्यानि0 क- निवाक्रया कर निदए जीन से ,-भूलल प्रकर$ आंवाश्याक पंक्षकर है#? " प्रनि$ नहै2 11.Plaintiff/respondent No.1 examined himself as P.W.-1 and exhibited documents from Ex.P/1 to Ex.P/24 whereas defendant No.1/appellant also examined himself as D.W.-1 and exhibited documents from Ex. D/1 to D/3. 12. Document (Ex.P/24) is a certified copy of judgment dated 06.05.1996 passed by 4th Civil Judge Class-I, Bilaspur in Civil Suit No. 50-A/95 wherein the names of Gangabai, Brij Mohan, Rajani Bai, Manoj, Rani Bai and Kanti Bai were arrayed as plaintiffs whereas defendants are Smt. Rambai, Rampal and Ramesh Kumar Agrawal (appellant/defendant No.1). The learned trial Court vide judgment dated 9 06.05.1996, after appreciation of oral and documentary evidence passed following decree which reads as under:- " अ - वादग्रस् भूनि पंर वादग$ क एवा प्रनिवाद क्रक-1 वा 2 क सेथा सेया0 स्वानित्वा एवा कब्जी क7 घो-र्ष$ क7 जी है#। प्रनिवाद क्रक-3 वादग$ एवा प्रनिवाद क्रक-1 वा 2 क निवारुद्ध सेन्या निवाभूजीन क वाद लकर वादग्रस् भूनि पंर अपंन स्वात्वा एवा कब्जी निनयानसेर प्रप्त कर सेक है#। बं- प्रनिवाद क्रक-3 द्वार निवाभूजीन क- वाद लया जीन एवा उसेक निननि$ है-न क पंश्चा है प्रनिवाद क्रक 3 वादग्रस् भूनि क स्वात्वा एवा कब्जी प्रप्त कर सेक है# ऐसे स्थिस्थानि इसेक पंवा प्रनिवाद क्रक-3 क- वादग्रस् भूनि पंर वादग$ क स्वात्वा एवा कब्जी दखल दन क अधिधकर नहै2 है# अB वादग$ क स्वात्वा एवा कब्जी बं क दखल दन से स्थाई निनर्षधज्ञा द्वार प्रनिवाद क्रक-3 क निवारूद्ध र-क लगई जी है#। से- उभूया पंक्ष अपंन अपंन वाद ब्याया स्वाया वाहैन कर ग।" 13. Against the said judgment, the appellant/defendant No.1 Ramesh Kumar Agrawal filed Civil Appeal bearing No. 2A/1999 and the learned appellate Court passed decree on 16.10.1999 (Ex.P/23) and dismissed the appeal of the appellant Ramesh Kumar Agrawal. Against this order, appellant Ramesh Kumar Agrawal again filed second appeal before High Court which was registered as SA No.474/2000 (Ex.P/22), this High Court passed order on 11.06.2013 and dismissed the appeal of appellant Ramesh Kumar Agrawal. Therefore, it is clear that the judgment dated 06.05.1996 passed by learned 4th Civil Judge Class I in Civil Suit No. 15A/2025 attained finality and it is clear from this judgment that disputed property in impugned judgment was also described in previous suit as Khasra No. 522/1, Rakba 0.07 acre (0.28 10 hectare) and the learned Civil Judge declared this property as joint property. 14. In para 16 of his cross-examination, Defendant No.1/appellant Ramesh Agrawal (D.W.-1) admitted that, “ याहै कहैन सेहै है# निक प्र०पं०-1 क अनबंध र और कल निक,-र क- बंचा निनष्पंनिद हैGआं था जी- झे स्वाकर है#। उ0 इकररन पंर र, ” वाद एवा सेनिक्षयाI क हैस्क्षर है#। Further in para 24, he admitted that, याहै कहैन सेहै है# निक र कथान चाथा व्यावाहैर न्यायाध, वाग निबंलसेपंर क न्यायालया व्या० वाद क्रक 503 अ/95 गगबंई बंन रबंई वाग#० निदनJक 12/04/96 क- हैGआं था। याहै कहैन सेहै है# निक उ0 प्रकर$ Kन वादभूनि क सेबंध वादभूनि क कब्जी झे निवाक्र ग$I न निवाक्रया पंत्र निनष्पंदन क पंहैल उसे सेMपं निदया था क कथान निकया है#। याहै कहैन सेहै है# निक उपंर-0 प्रकर$ क निन$ या प्र०पं०-24 न्यायालया द्वार झे वादग$I क निवारुद्ध निवाभूजीन क वाद लकर वादभूनि भूनि क स्वात्वा प्रप्त करन क निनदN, निदया गया था। याहै कहैन सेहै है# निक उपंर-0 निन$ या निदनJक 06/05/96 क- पंरिर निकया गया है#। याहै कहैन सेहै है# निक उपंर-0 प्रकर$ क7 अपंल अपंर धिजील न्यायाध, क न्यायालया क7 था। धिजीसे 16/10 /99 क- कर अधनस्था न्यायालया क आंद, क- स्थिस्थार रख था। क- निन$ या पंरिर कर अधनस्था न्यायालया क आंद, क- स्थिस्थार रख था। He also admitted that his appeal was dismissed by Hon’ble High Court and he did not challenge the order of High Court before Hon’ble Apex Court and he also admitted that he did not file any partition suit as per judgment dated 06.05.1996 passed by learned 4th Civil Judge Class I in Civil Suit No. 15A/2025 . 15. Dealing with the similar issue, Hon’ble Apex Court in the matter of Ganga Saran Vs. Ram Charan Ram Gopal; (1952) AIR (SC) 9 held in paras 10 and 11 as under:- “10. Even apart from the construction of the agreement, it seems to us that the plea of the respondents must fail on their own 11 admissions. The defendant has stated in his evidence that he had not sold the 61 bales of cloth to any other person at the time he received the telegraphic notice of the 20th November, 1941, (exhibit 1). On his own admission. therefore, he was in a position to supply 61 slice of the contracted goods at the time when the breads of the agreement is alleged to have happened That being so, we are unable to hold that the performance of the contract had become impossible. The matter however does not rest there. Guruprasad, a clerk of the Mills Company, who is the second witness for the defendants, has made an important statement to the following effect :- "The customers all place their requirements before the sales manager. If the goods required are ready, they are sold to the customers and if they are not ready and if the customer wants them to the manufactured they are delivered to the customers after manufacture. An order book is maintained at the Mills." 11. Such being the practice which prevailed in the Victoria Mills, it was for the defendants to show that an order for the manufacture of the contracted goods was placed with the Mills and yet the Mills failed to supply the goods. No such evidence has however been offered by the defendants. The High Court has surmised that it might not have been possible to supply the goods within the period mentioned in the agreement, but there is no material to support that statement.” 16. Again in the matter of K. Prakash Vs. B.R. Sampath Kumar; (2015) AIR (SC) 9, Hon’ble Apex Court held in paras 16, 17 and 18 as under:- 16. Indisputably, remedy for specific performance is an equitable remedy. The Court while granting relief for specific performance exercise discretionary jurisdiction. Section 20 of the Act specifically provides that the court's jurisdiction to grant decree of specific 12 performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles. 17. The King's Bench in Rookey's Case [77 ER 209 (1597) 5 Co. Rep. 99] it is said: Discretion is a science, not to act arbitrarily according to men's will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the constitution entrusted with The Court of Chancery in Attorney General v. Wheat [(1759) | Eden 177 28 ER 652) followed the Rooke's case and observed: the law is clear and courts of equity ought to follow it in their judgments concerning titles to equitable estates, otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni vin, yet when it is asked, vir bonus est quis? The answer is, qui consulta partum, qui leges juraq servat. And as it is said in Rooke's case, 5 Rep. 99 b, that discretion is a science not to act arbitrarily according to men's will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn 13 the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the constitution entrusted with. This description is full and judicious, and what ought to be imprinted on the mind of every judge. 18. The principles which can be enunciated is that where the Plaintiff brings a suit for specific performance of contract for sale, the law insists a condition precedent to the grant of decree for specific performance that the Plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated u/s 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree is established then the Court has to exercise its discretion in favour of granting relief for specific performance.” 17. In light of above, in this case, it is also clear that at the time of execution of agreement between the parties, civil suit was pending. In the matter of P.C. Varghese Vs. Devki Amma Balambika Devi & Ors. 14 reported in (2005) 8 SCC 486 the Hon’ble Supreme Court held that the Specific Performance of Part of contract in respect of share of only some of the joint owners is maintainable as the vendor can transfer their share in the property being definite share in favour of vendee without courts sanction. 18. Learned trial Court on the basis of admission of appellant/defendant No.1 and after appreciation of all previous judgments and documents decided issues No. 1, 2 and 4 in favour of respondent No.1/ plaintiff. The learned trial Court rightly found that the appellant/defendant No.1 is owner of disputed property and as per execution of agreement dated 14.02.2005, respondent No.1/ plaintiff is entitled for specific performance of contract. Thus, the findings recorded by the learned trial Court are based on proper appreciation of oral and documentary evidence and we do not find any illegality or irregularity in the findings so recorded by the learned trial Court. 19. Accordingly, the appeal being sans any merit is liable to be and is hereby dismissed. 20. Let a decree be drawn up accordingly. Parties to bear their own cost. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV