AJAY KUMAR Vs. SANJAY RAJU GOEL & ORS

JUDGEMENT

(1.) By way of this Regular Second Appeal under Section 100 read with Order XLII CPC, appellants have challenged the impugned judgment/decree dated 4 th May, 2010 passed by the learned Addl. District Judge, Delhi in RCA No.55/2005 whereby the judgment/decree dated 24 th August, 2005 passed by learned Civil Judge in Suit No.141/02 filed by respondent no.1/plaintiff for specific performance and injunction, has been upheld.

(2.) The case of respondent no.1 herein i.e., plaintiff before the learned Civil Judge was that he was living in the suit property i.e., house no.4800-1 Ram Bazar, Cloth Market Delhi with his parents and brothers at the ground floor, first floor and third floor and was carrying on business as well. As per him property was owned by Ajay Kumar since deceased through L.Rs. i.e., appellants and respondents 2 to 4. On 5 th October, 1986, an agreement to sell in respect of property bearing no.4800-1, Ram Bazar, Cloth Market, Chandni Chowk, Delhi-7, comprising of four storey building over a plot of 64 sq. yds was entered into between respondent no.1/plaintiff on one hand and deceased Ajay Kumar i.e., defendant no.2 before the trial court on the other hand for a consideration of Rs.98000/- and a sum of Rs.10000/- was received as a earnest money and a receipt was also executed by Ajay Kumar(deceased) in his name as well as in the name of respondents 2 to 4. The deceased Ajay Kumar and respondents 2 to 4 were defendants 1 to 4 before the Ld. Civil Judge. After the death of Ajay Kumar, his L.Rs., i.e., appellants were brought on record. The other terms were settled as per agreement to sell dated 5.10.1986 and sale deed was to be executed within one month of the execution of the agreement to sell i.e., before 5.11.1986. The case of respondent no.1/plaintiff was that deceased Ajay Kumar i.e., defendant no.2 and respondents 2 to 4 i.e., defendants 1, 3 and 4 did not come forward and on 6.11.1986, respondent no.1/plaintiff got issued legal notice calling upon them to do the needful as he was ready to perform his part of transaction. Thereafter respondent no.1/plaintiff came to know that they were negotiating with other parties, as such respondent no.1/plaintiff was constrained to file civil suit no.141/2002 for specific performance and injunction wherein it was prayed that appellants i.e., L.Rs of defendant no.2 and respondents 2 to 4/defendants 1, 3 & 4 be directed to execute and register the sale deed in favour of respondent no.1/plaintiff in respect of suit property and a further prayer was made that deceased Ajay Kumar and respondents 2 to 4 i.e., defendants before the Ld.Civil Judge be restrained from transferring the suit property in any manner to any one.

(3.) The said suit was contested by deceased Ajay Kumar and respondents 2 to 4 who were all defendants before the learned Civil court by filing a common written statement wherein it was denied that suit property is a four storey building. As per them, it was only a three storey building. They had had denied that they had entered into agreement to sell dated 5.10.1986 with respondent no.1/plaintiff and executed any receipt, as was alleged. Respondents 2 to 4/i.e., defendants 1, 3 and 4 before the learned trial court had stated that deceased Ajay Kumar i.e., defendant no.2 had no right or authority on their behalf to enter into or sign any agreement. It was further alleged that agreement to sell and receipt are forged and fabricated documents. They had also taken a stand that deceased Ajay Kumar/defendant no.2 and respondents 2 to 4/defendants 1, 3 & 4 had already entered into agreement to sell in respect of suit property with one Hari Chand and others on 2.8.1986 for a consideration of Rs.1,90,000/-. They had also pleaded that respondent no.1/plaintiff and some of his family members are tenant in respect of a shop on the ground floor and in respect of first floor of suit property. Appellants and respondents 2 to 4/i.e., defendants admitted receipt of envelope purportedly sent by respondent no.1/plaintiff but as per them, same was containing only a piece of old newspaper for which they had lodged a police report on 25.11.1986. They had specifically taken a stand that suit property was jointly owned by deceased Ajay Kumar as well as respondents 2 to 4/defendants, as such deceased Ajay Kumar/defendant no.2 had no authority to execute agreement to sell on their behalf.