BEFORE LEARNED 9th DISTRICT JUDGE, DISTRICT

GWALIOR

Regular Civil Suit no. 414A/2024

Plaintiff: Avinash Dixit

VERSUS

Defendants: Brij Kishore and Others

WRITTEN STATEMENT ON BEHALF OF DEFENDANT

NO. 1 AND 2 TO SUIT FILED BY THE PLAINTIFF

Defendant no. 1 and 2, named above, most respectfully submit this

written statement as under:

PRELIMINARY SUBMISSIONS:

1. That, present civil suit has been filed by the plaintiff against the
defendants seeking specific performance of alleged agreement
dated 17.01.2014 and for permanent injunction against creation
of third party rights.

2. That, it is evident that suit of the plaintiff is time barred and

cause of action has been manufactured to bring it within
limitation; present suit has been filed 10 years after execution of
alleged agreement to sell dated 17.01.2014. No explanation for
the inordinate delay in taking any action for enforcement of
alleged agreement to sell.
3. That, the plaintiff has alleged that agreement to sell dated
17.01.2014 was executed in his favour by defendant no. 3. It
has been further alleged that defendant no. 3 had executed said
agreement on basis of power of attorney dated 04.05.2013
executed by defendant no. 1 and 2 in his favour. Perusal of the
agreement to sell reveals that at the time of its execution
possession of property was not handed over to plaintiff.
Execution of this agreement is denied by defendant no. 1 and 2.
However, even if it is assumed that such agreement was
executed, then also it could not have been acted upon as it was
deficiently stamped. Entry 5(e)(ii) in Schedule 1-A of the Stamp
Act, 1899 (in short, ‘Act of 1899’) stipulates that stamp duty of
one percent of the total consideration of the property set forth in
agreement is required to be paid on an agreement to sale when
possession of the property is not given. Stamp duty of Rs. 1,000
is affixed on the agreement to sell produced by the plaintiff
which is much below the requisite amount. Thus, the suit is
liable to be dismissed on this count.

4. That, the plaintiff has failed to provide a list of documents in

terms of Order 7 Rule 14(2) of CPC which is a mandatory
provision. The answering defendants would be faced with
uncertainty about the case of the plaintiff and would be
precluded from properly setting up their defence.

5. That, for the purpose of relief of permanent injunction the

valuation of suit has to be done in the light of Section 7(iv)(d) of
the Court Fees Act which provides that plaintiff can exercise its
 discretion to value relief for injunction, however that valuation
has to be reasonable and rational. In present case plaintiff made
valuation of Rs. 1000/- for injunction and paid court fees at tune
of Rs. 120/- which is arbitrary and unreasonable and against the
settled principle of law.

6. That, condition of procurement of Nazul NOC and getting

demarcation and partition as contemplated in the alleged
agreement to sell dated 17.01.2014 was beyond the authority of
the alleged power of attorney even if it is believed to be genuine.
Perusal of the alleged power of attorney reveals that defendant
no. 3 was entitled to execute sale deed and receive consideration
in respect of the suit lands. However, procurement of Nazul NOC
and right to initiate proceedings before any Court could only
have been exercised by him in event of a dispute. Without
prejudice to the contents of foregoing paragraphs, the
agreement to sell was a nullity even if it is assumed that the
power of attorney was validly constituted as the holder was not
empowered to approach the Courts without there being a
dispute. Section 228 of Indian Contract Act clearly states that
any act which an attorney is not authorized to do, being
inseparable from the remaining part of the agreement would
result in invalidation of the same in entirety. Strictly construing
the alleged power of attorney in light of alleged agreement to
sell clearly reveals that defendant no. 3 (alleged power of
attorney holder) exceeded his authority in accepting the
obligation of getting permissions from the revenue courts for
which he was not given competence.
7. Defendant no. 3 and the answering defendants have a share in
joint holding situated in Village Kheriya Mirdha, District Gwalior.
The suit lands are owned by the answering defendants and are
part of the aforesaid joint holding. Defendant no. 3 along with
owner of another portion of the joint holding i.e Firm Progressive
enterprise through its partner Ashok Goyal applied for batankan
and partition of the joint holding and obtained an order dated
23.03.2022 from the concerned Tehsildar. It is notable that
defendant no. 3 deliberately sent notice of these proceedings on
an incorrect address of the answering respondents prevent them
from participating in them. Consequently, the aforesaid order
dated 23.03.2022 was passed behind the back of the answering
respondents due to unfair and unscrupulous tactics of defendant
no.3.
7A. The answering defendants after acquiring knowledge of this ex-
parte order filed an appeal before the SDO, Gwalior. The effect
and operation of the order dated 23.03.2022 passed by the
Tehsildar was stayed by SDO by order dated 29.07.2022 as an
interim measure till final disposal of the appeal.
7B. An objection regarding non-joinder of necessary party was taken
by the applicant before Tehsildar before the SDO. The answering
defendants filed an application under Order 1 Rule 10 of CPC
seeking impleadment of a party in the appellate proceedings
pending before the SDO. The SDO allowed the application of the
answering defendants under Order 1 Rule 10 of CPC and rejected
the application under order 1 Rule 9 of CPC filed by ……
(applicant before the Tehsildar) by order dated 01.05.2023.
7C. Defendant no. 3 preferred a revision against the order of SDO
dated 01.05.2023. Tellingly, the party whose application under
Order 1 Rule 9 of CPC was rejected, did not challenge the order
dated 01.05.2023. The Collector allowed this dubious revision
petition by order dated 19.01.2024, upheld the objection as
regards non-joinder of necessary party and dismissed the appeal
filed by the answering defendants before the SDO.
7D. That, the answering defendants filed miscellaneous petition MP
no. 1296/2024 before the Hon’ble High Court challenging order
dated 19.01.2024. The Hon’ble High Court, by order dated
06.03.2024, was pleased stay the effect and operation of order
dated 19.01.2024 passed by the Collector.
7E. That, foregoing narration of events clearly demonstrates that
proceedings for batankan and partition were undertaken by
other owners of parts joint holding and not by the answering
defendants. The plaintiff in para 8 of the application under Order
39 Rule 1 and 2 of CPC has falsely stated that proceedings
before the revenue authorities were undertaken by the
answering defendants. Such pleading also shows that the
plaintiff is hand in glove with the defendant no. 3 who is the real
orchestrator of the revenue proceedings in respect of the suit
lands.

8. That, the plaintiff has also prayed for relief of permanent

injunction along with specific performance. Scope of a suit of
specific performance is limited and does not admit of a claim of
permanent injunction. Thus, the suit in its present form deserves
to be dismissed as it is not maintainable in law.
PARA-WISE REPLY

1. That, contents of para 1 of the plaint being matter of record,

need no reply.

2. That, the answering defendants are not at all acquainted with

the plaintiff. They did not have any correspondence with him in
respect of the sale of the suit lands. Defendant no. 3 was not
entitled to transact with the plaintiff in respect of the suit lands
as he was not a validly constituted power of attorney of the
answering defendants. The contents of para 2 of the plaint,
being false and unsubstantiated, are denied.

3. That, no money was received by the answering defendants from

either the plaintiff or defendant no. 3. Further, the alleged
agreement, if any, was not executed at the behest of the
answering defendants as they did not even know the plaintiff. No
promise has been made by defendants regarding getting
Batankan, demarcation and Nazul NOC. Further, the agreement
cannot be acted upon for want of requisite stamp duty. Contents
of the para 3 of the plaint, being mala fide and frivolous, are
denied.

4. That, it is reiterated that the answering defendants had never

met the plaintiff; therefore, the question of introducing him to
the defendant no. 3 would not arise. Moreover, the factum of
giving a copy of alleged power of attorney to the plaintiff is also
 concocted as the answering defendants was never in touch with
him. It beggars belief that the plaintiff despite alleging
acquaintance with the answering defendants never engaged in
written correspondence with them for 10 years despite allegedly
parting with a substantial sum of Rs 31,00,000. Contents of
para 4 of the plaint, being false and concocted, are strictly
denied.

5. That, condition of procurement of Nazul NOC and getting

demarcation and partition as contemplated in the alleged
agreement to sell dated 17.01.2014 was beyond the authority of
the alleged power of attorney even if it is believed to be genuine.
Perusal of the alleged power of attorney reveals that defendant
no. 3 was entitled to execute sale deed and receive consideration
in respect of the suit lands. However, procurement of Nazul NOC
and right to initiate proceedings before any Court could only
have been exercised by him in event of a dispute. Without
prejudice to the contents of foregoing paragraphs, the
agreement to sell was a nullity even if it is assumed that the
power of attorney was validly constituted. Section 228 of Indian
Contract Act clearly states that any act which an attorney is not
authorized to do, being inseparable from the remaining part of
the agreement would result in invalidation of the same in
entirety. Strictly construing the alleged power of attorney in light
of alleged agreement to sell clearly reveals that defendant no. 3
(alleged power of attorney holder) exceeded his authority in
accepting the obligation of getting permissions from the revenue
courts for which he was not given competence. Thus, contents of
 para 5 of the plaint being false and contrary to the record are
strictly denied.

6. That, it bears reiteration that the answering respondents had no

contact with the plaintiff as they were not acquainted with each
other. It is improbable that the plaintiff stayed in touch with the
answering defendants only verbally for 10 years before filing the
suit after allegedly giving Rs. 31,00,000 at time of alleged
execution of agreement to sell dated 17.01.2014. It is also
unbelievable that plaintiff was ready and willing to pay Rs 99
lakhs during these 10 years without ever intimating about such
readiness and willingness to the answering defendants. Even
otherwise, the plaintiff has not demonstrated any readiness or
willingness either through his conduct or his pleadings. No
documentary proof in support of these pleadings has been given
along with the plaint. Contents of para 6 of plaint, being
unsubstantiated, are denied.

7. That, false averments regarding initiation of proceedings before

the Revenue Courts by the answering defendants have been
made by the plaintiff; rather, it was the plaintiff and his cohorts
who had undertaken these proceedings behind the back of the
answering defendants. The patent falsity and mala fide of the
plaintiff has been explained in detail above in paragraphs 7 to 7E
of the preliminary submission of the present written statement.
The plaintiff has also deliberately omitted to state the date on
which and from whom he came to know about proceedings
before revenue authority in which an order was passed on
 23.03.2022. Further, contradictory pleadings have been raised in
this para; at one point, the plaintiff states that conditions
precedent for execution of sale deed based on agreement to sell
dated 17.01.2014 were batankan and simankan of the suit
property and then states that he was ready and willing for
specific performance of said agreement even without fulfilment
of above pre-conditions. Such contradiction clearly shows that
cause of action was manufactured and the agreement to sell
itself was sham. Thus, contents of para 7 of the plaint, being
mala fide, are denied.

8. That, the plaintiff has miserably failed to demonstrate his

readiness and willingness and has raised contradictory pleadings
as mentioned above. The plaintiff has relied on the alleged pre-
condition of batankan and simankan of suit property as a mala
fide attempt to bring his suit within limitation and has
subsequently stated that he had waived these conditions to seek
execution of sale deed on basis of agreement to sell dated
17.01.2014. If the pre-conditions of batankan and simankan
were dispensable as per plaintiff’s own admission, then
explanation as to why the suit based on alleged agreement to
sell was not filed within 3 years from its execution i.e.
17.01.2014 was required to be given. Contents of para 8 of the
plaint are being false and contradictory are strictly denied.

9. That, the answering respondents had tendered a reply to notice

dated 19.02.2024 on 05.03.2024 through advocate Shri Falgun
Kalra. This was that first time that the answering defendants
 came to know about the skullduggery of the plaintiff and
defendant no. 3. Consequently, complaint dated 29.04.2024 was
made to the Police by the answering defendants regarding this
episode. Other averments regarding visit of defendant no.1
along with prospective buyers on disputed property and making
offer of returning money is false and as such denied. Contents of
para 9 of the plaint, being false and unsubstantiated, are denied.

10. That, land which is subject matter of this suit is agriculture land
and revenue department of Madhya Pradesh Government is
proper and necessary party to the present suit. Therefore, state
government needs to be given a mandatory notice prescribed
under section 80 of CPC, 1908. As such content of para 10 of
plaint is denied.

11. That, cause of action for filing present suit stated in para 11 of
plaint wherein it has been pleaded that firstly cause of action
arises from date of execution of registered agreement, however
no registered agreement has been filed by plaintiff along with
plaint neither there is any pleading with regard to in whose
power and possession the said alleged document is. Secondly
cause of action has been alleged to have arisen when defendant
No. 1 & 2 got partition and demarcation done; said fact is also
false as defendants never applied for any partition and
demarcation which is evident from the fact that no document to
demonstrate initiation of such action by them has been produced
by the plaintiff along with the plaint. Further, these pleadings are
contrary to contents of para 7 of the plaint where the plaintiff
 has admitted that he was ready to get sale deed executed
without fulfilment of conditions of batnakan and simnakan. By
raising such clever pleading, the plaintiff is trying to create
illusory cause of action and to evade bar of limitation which
applies to be present case with full vigour. Contents of Para 11 of
plaint are false and concocted and denied.

12. That, for the purpose of relief of permanent injunction the

valuation of suit has to be done in the light of Section 7(iv)(d) of
the Court Fees Act which provides that plaintiff can exercise his
discretion to value relief for injunction, however that valuation
has to be reasonable and rational. In present case plaintiff made
valuation of Rs. 1000/- for injunction and paid court fees at tune
of Rs. 120/- which is arbitrary and unreasonable and against the
settled principle of law. Furthermore, suit for relief and specific
performance along with prayer for permanent injunction is also
not maintainable. As such, contents of Para 12 of plaint, being
against the law, are denied.

13. That, contents of para 13 of plaint are beyond the knowledge of

answering as such denied. The plaintiff is put to strict proof of
the same.

PRAYER
That, it is most humbly prayed before this Learned Court that:
a. the suit filed by the plaintiff may kindly be dismissed with
exemplary cost awarded to defendant No. 1 & 2
 b. Any other order may be passed in favour the answering
defendants which is deemed fit in the facts and circumstances of
the case.
Humble defendant no. 1 and 2

Through Counsel Brij Kishore and Smt. Sushila

Anand Raghuvanshi

VERIFICATION:
Verification at _______ on _______ day ________ of, 2024 that the
contents of paras 1 to 7E of the preliminary submission and para 1 to
13 of para wise reply on merits are true and correct to my personal
knowledge of facts and contents of law are true & correct on the basis
of legal advice received and believed to be true.

DEFENDANT No. 1 & 2

Brij Kishore and Smt. Sushila
 BEFORE LEARNED 9th DISTRICT JUDGE, DISTRICT GWALIOR

Regular Civil Suit no. 414A/2024

Plaintiff: Avinash Dixit
VERSUS
Brij Kishore and Others
Defendants:

AFFIDAVIT

I, Brij Kishore S/o Shri Bharosaram, Age - 62 years, Occupation:

Pensioner, R/o House No. 213 Phase 2, Mohali, Punjab do hereby state
on oath and solemnly affirm as under: -
1. That, I have filed the written statement and the same has been
drafted under my instruction.
2. That, contents of the written statement from paras 1 to 7E of the
preliminary submission and para 1 to 13 of para wise reply on
merits have been explained to me and I have fully understood
the same.
3. That, the factual contents of written statement are true & correct
to my personal knowledge and the legal aspect thereof has been
dealt with by advocate under my instructions.

Date:-__/09/2024 ………Affiant

VERIFICATION:
I, the above named affiant do hereby verify on oath that the contents
of the above affidavit in Para 1 to 3 are true and correct to the best of
my knowledge and that no part of it is false nor anything is concealed
there from.
Date :- __/09/2024
Place:- ………Affiant