Alok Sharma, J. - (1.) THE plaintiff -appellant -applicant (hereinafter 'the plaintiff') is aggrieved of the order dated 30.09.2013, passed by the Additional District Judge No. 7, Jaipur Metropolitan, Jaipur (hereinafter 'the trial court') dismissing his application under Order 39 Rule 1 & 2 CPC in his suit for specific performance in respect of a purported agreement to sell dated 26.06.2012 with the respondents -defendants -non -applicants (hereinafter 'the defendants').
(2.) MR . Ashwani Chobisa, appearing for the plaintiff, submitted that the learned trial court has overlooked the first principle in civil law that in respect of immovable property under litigation it should be preserved lest even in the event of the plaintiff succeeding, he only obtains an un -executable decree or otherwise subsequently forced into multiplicity of litigation for the enforcement of such a decree. Counsel submitted that the trial court did not find a prima facie case in favour of the plaintiff in the application under Order 39 Rule 1 & 2 CPC inter alia on count of the consideration under the agreement to sell dated 26.06.2012 passing in cash and also for the reason of the agreement to sell being inadequately stamped. Counsel submitted that in terms of Section 35 of the Rajasthan Stamp Act, 1988, the plaintiff had the option of rectifying the defect and paying the requisite stamp duty along with the statutory penalty. Counsel submitted that the learned trial court also erred in holding that the agreement to sell dated 26.06.2012 was of little probative worth and inadmissible on the ground of it not being unregistered and in coming to the aforesaid conclusion, the learned trial court overlooked the proviso of Section 49 of the Registration Act, 1908. It was prayed that in this view of the matter, this Court in the exercise of its appellate power, set aside the order dated 30.09.2013 and direct that during the pendency of the suit for specific performance, the defendants in the facts of the case maintain status quo with regard to the suit land. Mr. R.K. Daga, appearing for the defendants submitted that the purported agreement to sell dated 26.06.2012 is palpably forged for more than one reason. He submitted that the defendants came into tenancy of the suit land only on 21.11.2012 and did not even have the authority as on 26.06.2012, when the agreement to sell was purportedly executed by them, to convey the said land. It was further pointed out that even though the suit land is situated in Jaipur, the agreement to sell dated 26.06.2012 was executed in Hindaun, a distance of about 200 KMs away and is suspect more particularly in view of the fact of the vendor being a 86 years old person. Counsel submitted that in terms of Section 114 of the Evidence Act, this Court should at the present stage presume the unlikelihood of the original defendant having travelled 200 Kms to Karauli to enter into the agreement to sell dated 26.06.2012 with regard to his agricultural land situate at Jaipur. Counsel then submitted that the execution of the agreement to sell at Hindaun is further improbable in view of the fact of cash having been allegedly paid as consideration for reason that the original defendant a 86 years old fragile man could not be expected in the normal course to carry a huge amount of Rs. 5,51,000/ - all the way from Hindaun to Jaipur compromising the safety not only of the money but his own personal safety too.
(3.) HEARD . Considered.;