G P SHARMA Vs. HARI SHANKAR SHARMA

JUDGEMENT

(1.) This Second Appeal is filed against the concurrent judgments of the courts below; of the trial court dated 8.2.2011 and the first appellate court dated 30.10.2012; by which the suit for possession filed by the appellant/plaintiff has been dismissed.

(2.) The facts of the case as pleaded by the appellant/plaintiff in the plaint were that the appellant/plaintiff and the respondent/defendant are real brothers. Respondent/defendant was an employee of Railways and therefore was a member of the Railway Board House Building Co-operative Society. It was further the case of the appellant/plaintiff that the respondent/defendant did not have enough funds to become member of the co-operative society and for making payment for land to be conveyed by the society and consequently the appellant/plaintiff also contributed equally in making payments to the cooperative society for membership and transfer of the plot by the society to the respondent/defendant. It was further pleaded by the appellant/plaintiff that the respondent/defendant agreed that he will take steps to get the appellant/plaintiff admitted as a joint member of the cooperative society alongwith the respondent/defendant. The appellant/plaintiff claims to have paid various amounts either directly to the respondent/defendant or to the society towards allotment of the plot. In all the appellant/plaintiff claims that a sum of Rs.5,340/- was paid to the respondent/defendant towards cost of the land of the suit property bearing no.230, Anand Vihar, New Delhi. The case of the appellant/plaintiff further was that the respondent/defendant executed in his favour for half ownership rights in the suit property an agreement to sell dated 3.4.1980. A separate receipt acknowledging receiving of a sum of Rs.9,570/- was also executed by the respondent/defendant as PW1/C. The appellant/plaintiff claims that by virtue of this agreement to sell he got benefit of the doctrine of part performance under Section 53A of the Transfer of Property Act, 1882 for half ownership interest in the suit property. The appellant/plaintiff claims that he received the possession from the respondent/defendant, but when on 1.2.1983 the appellant/plaintiff went with his labourers to make estimates and measurements for raising a boundary wall to protect his possession, the respondent/defendant threatened the appellant/plaintiff to desist from raising any construction. The appellant/plaintiff in the plaint also refers to earlier legal proceedings in a suit titled as Hari Shankar Vs. G.P.Sharma, suit No.94/1987 wherein the respondent/defendant as plaintiff had challenged the agreement to sell dated 3.4.1980 executed by him in favour of the appellant/plaintiff as having been got fraudulently executed, but that suit No.94/1987 was dismissed by the judgment of the court dated 3.3.1990, and since that judgment has become final, consequentially all rights which the appellant/plaintiff has as per agreement to sell stands finalized in his favour.

(3.) The respondent/defendant before the trial court contended that the suit for possession filed by the appellant/plaintiff was not maintainable because the same was based upon the null and void agreement to sell dated 3.4.1980. Suit was also pleaded to be barred by limitation. Suit was also said to be barred by the provision of Section 23 of the Contract Act, 1872 as also by Section 4 of the Benami Transactions (Prohibition) Act, 1988. It was contended by the respondent/defendant that the respondent/defendant himself received possession from the housing society in the year 1981 and therefore there did not arise any question of handing over possession to the appellant/plaintiff earlier to that and much less in the year 1978 (or even 1980) when the agreement to sell was entered into and as was the case of the appellant/plaintiff. Respondent/defendant also denied that he had ever received the half price of the suit plot or that he assured the appellant/plaintiff that he would assist in making the appellant/plaintiff as member of the cooperative society.