BALBIR SINGH Vs. GANGA VISHAN

JUDGEMENT

(1.) This a regular second appeal bearing No. 13/2004 titled Balbir Singh v/s. Ganga Vishan @ Vishan Lal Anand, Although the appeal has been filed in the year 2004, it has been admitted on 12.08.2008 by my learned predecessor and while admitting the appeal, the following ten questions have been framed as substantial questions of law involved in the matter.

(2.) Before dealing with the aforesaid questions, it may be pertinent here to give a brief background of the case leading to the filing of the present appeal.

(3.) The present appellant filed a suit for specific performance of the agreement to sell dated 06.07.1990 and for permanent injunction. The case which was set up by the appellant in the plaint was that the respondent/Sh. Ganga Vishan is the owner of the property bearing No. 27/3, Tihar II, Ashok Nagar, New Delhi having purchased the same vide sale deed dated 31.07.1965. It was alleged that the respondent/Sh. Ganga Vishan had appointed one Sh. S.L. Malhotra as his attorney on 28.02.1985 in respect of the suit property and authorized him to sell the property in question. The said attorney (since deceased) is alleged to have entered into an agreement to sell in respect of the suit property in favour of the appellant for a total sale consideration of Rs. 46,000/ -. It was alleged in the plaint that the appellant had made a payment of Rs. 41,000/ - in four installments i.e. Rs. 15,000/ - on 02.03.1987, Rs. 15,000/ - on 26.08.1988, Rs. 5,000/ - on 10.10.1989 and Rs. 6,000/ - on 06.07.1990. It is at the time of receiving the final installment of Rs. 6,000/ - on 06.07.1990 that it is alleged by the appellant that the oral agreement to sell the suit property was reduced into writing and receipts were also executed for the payment received by Mr. S.L. Malhotra. It was envisaged in the agreement to sell dated 06.07.1990 that the balance consideration of Rs. 5,000/ - shall be paid by the appellant at the time of registration of the sale deed by the respondent/Sh. Ganga Vishan. The respondent/Sh. Ganga Vishan, as per the agreement to sell, was required to obtain sale permission from original defendant Nos. 2 & 3 before execution of the sale deed. It was alleged that the respondent/Sh. Ganga Vishan through is attorney Mr. S.L. Malhotra had assured the appellant that the property in question is free from all encumbrances and title of the suit property was clear and without any blemishes.