KRISHNA DEVI SONI Vs. SHASHI PRABHA GUPTA

JUDGEMENT

(1.) This is a defendant's appeal aggrieved by the judgment and decree dated 4-8-2008 passed by the 9th Additional District Judge (F.T.C.) Bilaspur in Civil Suit No. 18-A/2008 by which suit for specific performance and permanent injunction has been decreed in favour of the respondent/plaintiff by the Court below.

(2.) The respondent/plaintiff filed a suit registered as Civil Suit No. ISA/2008, claiming decree of specific performance, permanent injunction, and recovery of possession on the pleadings that the defendant No.1-Smt. Krishna Devi Soni executed an agreement of sale on 27-06-2005 for sale of property in dispute being land and two storied house constructed thereupon situated at Khasra No.411/16& 411/17, Patwari Halka No.22, Revenue Circle Bilaspur, Tahsil and District Bilaspur for consideration of Rs.4 Lakhs and received Rs.51,000/- as advance. It was further pleaded that as per the agreement, the defendant No.1/vendor had agreed to execute sale deed in favour of the plaintiff within 15 days of arrangement of fund through bank advance by the purchaser or in any case within a period of five months from the date of agreement. It was further pleaded that the defendant agreed to get the tenant, who resided at the ground floor of the disputed land, evicted before execution of the sale deed, but no efforts were made in that direction. It was also pleaded that in spite of several request made by the plaintiff for execution of the sale deed as per the agreement of sale, the defendant No.1 avoided to execute the same. Thereafter, the plaintiff got published a notice in the daily newspaper dated 12-10-2005 and thereafter also sent notice through Registered Post & U.P.C. on 24-10-2005 requiring the defendant No.1 to execute the sale deed on 07-11-2005. The case of the plaintiff is that the defendant No.1 did not come for execution of the sale deed though the plaintiff kept waiting for the defendant No.1 in the office of Registrar, Bilaspur on 07-11-2005. It was also pleaded that the plaintiff has made all attempts and was ready and willing to perform her part of contract as she was in possession of sufficient funds and in spite of several request made, notice sent through Registered Post/U.P.C. and published in the newspaper, the defendant No.1 avoided to execute the sale deed. It was also pleaded that the defendant No.1 being an old lady, at her request, the husband of the plaintiff co-operated to get the name of defendant No.1 mutuated in the revenue records to facilitate execution of sale deed as per the agreement. Later on, the plaintiff came to know that the defendant No.2 has started exerting pressure on the vendor/defendant No.1 to sell the disputed house in his favour. It is the apprehension of the plaintiff that the defendant No.1 may sell the property to any other person. Non-execution of sale deed gave rise to cause of action for filing the suit claiming decree of specific performance of contract based on agreement dated 27-06-2005 and for decree for permanent injunction restraining the defendant No. 1 from alienating the property in dispute in favour of defendant No.2/or any other person as also for possession of the property in dispute upon due execution of the sale deed.

(3.) The appellant/defendant No.1 resisted the claim of the plaintiff on pleadings inter alia that she had never executed any agreement of sale nor received any advance and she being an old lady, taking undue advantage of her loneliness, agreement of sale has been prepared which is void. It was further pleaded by the defendant No. 1 that the agreement of sale in favour of defendant No.2 was executed on 15-04-2005 and the plaintiff, in full knowledge of the above fact, with an intention to somehow grab the property, prepared a false agreement. It was further pleaded that the defendant No. 1 was taken to Notary by the plaintiff and her husband and upon payment arrears of rent of Rs. 7,200/- in the name of agreement of tenancy and fixation of rent, her signatures were obtained on the stamp papers. It was neither explained nor read over to her. It was further pleaded that the agreement was void for uncertainty in view of the terms and conditions regarding bank finance and execution of sale deed within fifteen days from the availability of bank finance or five months. It was also pleaded that the plaintiff herself has not performed her part of the contract under the agreement of sale.