TARAN SINGH Vs. PIAR KAUR

JUDGEMENT

(1.) THIS appeal has impugned the judgment and decree dated 15.10.2004 which had endorsed the finding of the trial judge dated 08.7.2002 whereby the suit filed by the plaintiff Taran Singh seeking specific performance of an agreement to sell dated 28.11.1979 (Ex.P-2) had been dismissed.

(2.) THE case of the plaintiffs as set out in the plaint is that plaintiff no.1 is in possession of portions in property No.C-71, Shivaji Park, Village Madipur, New Delhi as a tenant of the defendant. Two shops, one shed courtyard on the ground floor and a hall on the first floor is in his occupation. This is w.e.f.1964-65. Plaintiff no.2 is also in occupation of shop and one shed on the ground floor and one hall on the first floor since 1964-65 and plaintiff no.3 is in occupation of two shops on ground floor and one hall on the first floor; his tenancy is also from 1964-65. Plaintiffs no.4 and 5 are in occupation of the portion shown in black in the site plan; they are tenants at a rental of Rs.200.00 per month. Defendant no.1 is the owner of the suit property. Defendant no.1 through defendant no.2 agreed to sell the aforenoted suit property which was in occupation of the aforenoted plaintiffs for a total consideration of Rs.1,15,000.00. Agreement to sell dated 28.11.1979 (ExP-2) had been executed between the parties. Rs.10,000.00 had been paid in advance. In terms of Ex.P-2 which was in the handwriting of defendant no.1 a sum of Rs.10,000.00 was paid as an advance; if any party refused to execute the sale deed the purchaser would lose this amount of Rs.10,000.00; if the owner had refused to finalize the deal he would be liable to pay Rs.20,000.00 to the plaintiffs; the sale deed would be executed within four months from the said date i.e. up to 28.3.1980.

(3.) RELEVANCY of para 4 shall be discussed in the later part of the judgment. Contention of the plaintiffs is that thereafter on 25.9.1980 vide a registered sale deed defendants no.1 and 2 had sold this property to defendants no.3 to 6; it could not have done so as the disputed land had stood acquired by an Award and permission under Section 5 of the Delhi Land (Restriction on Transfer) Act 1972 (hereinafter referred to as the Act of 1972) was mandatory, which permission has since not been taken. The plaintiff had in fact addressed a letter dated 21.3.1980 wherein it was brought to the notice of the defendant that the plot in question has been acquired by the DDA but this fact has been concealed by the defendant who has played a fraud upon the plaintiffs; clarification had been sought. In this letter it was stated that the advance of Rs.10,000.00 would remain with the defendants as an unconditional advance and will bear interest at the market rate. This letter was replied by the defendant on 17.4.1980. This is an admitted document and has been admitted by the DW-1 in his deposition. In this letter of 17.4.1980 it has categorically been averred that the plot in question has not been acquired and no notice from the concerned authority has been received; defendant had given time to the plaintiffs up to the first week of May 1980 to make the balance payment in order that the sale deed could be executed in their favour; this communication further stated that after the expiry of the said date the advance amount would be lost. This is the admitted factual scenario.