RAMESH KUMAR Vs. SATYA DEV

JUDGEMENT

(1.) This appeal has impugned the judgment and decree dated 31.07.2003 which had endorsed the findings of the trial Judge dated 04.02.1989 whereby the suit filed by the Plaintiff Harikesh seeking a declaration to the effect that the agreement to sell dated 28.05.1980 executed between himself and the Defendant be declared null and void had been dismissed. Relief seeking decree of permanent injunction had also been declined.

(2.) The Plaintiff is stated to be the allotted and lessee of shop No. 217, Block Z, Naraina Ware Housing Scheme, Naraina, New Delhi (hereinafter referred to as the "suit shop?). Sale deed or lease deed of the said shop had not been executed or registered in his favour. Defendant No. 1 was the partner of the Plaintiff. In good faith, Defendant No. 1 got executed certain documents from the Plaintiff. The Plaintiff was an illiterate man. The aforenoted documents comprised of an agreement to sell dated 28.05.1980 and a receipt and Will of the same date; two special power of attorneys dated 28.05.1980 had also been got executed by the Plaintiff. In terms of the aforenoted agreement, the Plaintiff had agreed to sell this shop to the Defendant for a consideration of Rs. 1,50,000/- but in the agreement to sell dated 28.05.1980, the consideration was wrongly mentioned as Rs. 11,500/-. In fact, it had been agreed between the parties that the suit shop would be sold by the Plaintiff to the Defendant for a total amount of Rs. 1,50,000/- and Rs. 11,500/- was paid only as an earnest money. Plaintiff was under the bonafide impression that the agreed price of the shop was Rs. 1,50,000/- and not Rs. 11,500/-. He came to know about this fraud having been played upon him when the present suit was filed.

(3.) The Defendant has contested the suit. Contention was that the agreement to sell had been entered into between the parties with open eyes; it had been agreed that the sale consideration would be Rs. 11,500/- and the entire sale consideration has since been paid to the Plaintiff; Defendant had also been given possession of the suit shop, he could not be dispossessed.