SAVITRI DEVI Vs. R S BINDRA

JUDGEMENT

(1.) Smt. Gobind Kaur and Smt. Ravinder Kaur Bindra, respondents No. 3 and 4, who are wives of respondents No. 1 and 2, entered into an agreement with the Engineering and Industrial Corporation Private Limited, hereinafter called the 'Colonisers' for the purchase of a plot of land measuring "about" 500 sq. yds. at the rate of Rs. 8.00 per sq. yds., being plot No. C-16 in Inderpuri Colony situated in the village of Naraina, in the Union territory of Delhi, which was being developed by the Colonisers, on the terms and conditions printed on the back of the receipts issued by the Colonisers in favour of the said respondents from time to time on the payment of the various instalments towards the price of t aforesaid plot. Ex. D 1 to Ex. D 7 are the various receipts for the payment of the total amount. The last payment was made on August 17, 1955 vide Ex. D 7. By the time the last payment was made, the number of the plot had been changed by the Colonisers to C-48, Vide Ex. D 25. Clauses (c) and (j) of the aforesaid conditions of sale, which are material for our present purpose, are as follows :

(2.) The said respondents claim to have taken possession of the plot from the Colonisers either on August 12, .1955 or on August 17, 1955 and to have constructed a boundary wall and to have put up some other construction thereon soon thereafter. It appears that between August 1955, the date of the last receipt and September, 1958, there was no communication or contact between respondents No. 3 and 4 on the one hand and the Colonisers on the other. It, however, appears that by virtue of the Delhi (Control of Building Operations) Ordinance (Ordinance 5 of 1955) and the Delhi (Control of Building Operations) Act, (Act 53 of 1955), which replaced the Ordiance and the Delhi (Control of Building Operations) Regulations hereinafter called 'the Regulation', framed under it, the layout plan of the aforesaid colony had to be revised with the result that the precise area of plot No. C-48, agreed to be sold to the said respondents, had to be increased to 611-1/9 sq. yds. The aforesaid respondents become aware of the fact sometime in September, 1958, when their husbands visited the office of the Colonisers, pursuant to which the said respondents wrote to the Colonisers, vide Ex. D-23 on September 21, 1958 that since an additional area of about III sq. yds. had been added to the said plot, the respondents were prepared to purchase it at the rate at which they had agreed to purchase the plot originally. The said respondents in the alternative expressed their willingness to accept any other plot similarly situated as the one that they had agreed to purchase or to pay interest at 6 per cent per annum on the price of the additional area from the date of the approval of revised layout plan. This was followed by letter of January 27, 1969, Ex. D-22 which was in the nature of a reminder. By their letter of February 5, 1959, the Colonisers informed the said respondents that the position with regard to the plot had been explained to their representatives when they visited the office of the Colonisers on October 10, 1958 and reiterated that the additional area would have to be purchased by the said respondents "at the current rates." After some correspondence, the Colonisers by their letter of December 7, 1960, Ex. D-11, informed the said respondents that the plot as agreed to be s old did not exist in the original shape in the revised layout plan and the contract had, therefore, become impossible of performance by reason of the subsequent events and the amount received would be refunded to the respondents on their delivering back to the Colonisers "the official receipts of the payment" issued in their favour. In reply to this, the said respondents sent a counsel's notice. Ex. D-16, to the Colonisers pointing out that the respondents were prepared to purchase the additional area at the rate originally agreed, that there was no justification to insist on the purchase of the additional area at the current rate and denying that the contract had become impossible of performance and requesting that the sale deed in respect of the plot be registered at an early date. It may be pointed out that in none of the letters exchanged between the parties, there was any mention that the possession of the plot had been delivered to or had otherwise been taken by the said respondents or that they had set up any boundary wall or any other construction on it. The Colonisers apperently had treated the matter closed after their letter. Ex. D-ll, because it appears that plot No. C-48 measuring 611-1/9 sq. yds. was sold by the Colonisers to Smt. Savitri Devi Smt. Kishan Devi, appeants, and Smt. Anguri Devi, respondent No. 5, by sale deed of January 16, 1961, Ex. P-2, which was registered on January 20, 1961. The appellants, thereupon filed a suit being suit No. 312 of 1961 on June 1, 1961 for an injunction to restrain the said respondents and their husbands from interfering with the possession of the said plot by the appellants and respondent No. 5, who had appearently failed to join the appellants as a co-plaintiff and was, therefore, impleaded as a defendant, and from carrying on any unauthorised construction thereon, and for mandatory injunction directing respondents No. 1 to 4 to demolish and remove the aforesaid unauthorised structure over the said plot. The suit was based on the allegations that the appellants and respondent No. 5 had purchased the aforesaid plot as stated above, that respondents No. I to 4 had illegally and wrongfully constructed "kacha" huts with "tinsheds" thereon on a portion of it without the knowledge and consent of the appellants and respondent No. 5 and that the said respondents were still carrying on construction work illegally and wrongfully. Alongwith the suit, the appellants sought an interim injunction which was granted by the learned Subordinate Judge on June 1, 1961 restraining the respondents No. 1 to 4 from making any construction upon the land in dispute or causing any interference in the possession of the appellants.

(3.) It is at this stage that respondent No. 4 sent a letter on June 3, 1961, Ex. D-14, to the Colonisers claiming that she was putting up in the premises on the plot for the "past sometime" and complaining that she was experiencing difficulty in connection with the drinking water and for want of drains and by-lanes and requesting the Colonisers to send her a copy of the application form for a water connection. The Colonisers were also requested to provide pucca drain and by-lanes etc. Oddly enough, this letter makes no mention of the controversy between the parties earlier with regard to the additional area and the correspondence exchanged between them in that behalf, the contention of the Colonisers that the contract had become impossible of preformance or of the suit filed in the meantime by the appellants even though the injunction granted by the Court on June 1, 1961 had apparently been served on the said respondents by them. This was replied to by the Colonisers by their letter of June 7, 1961, Ex. D-15, in which the claim of the respondent of being in occupation was challenged and the respondent was reminded that they had been asked to take the refund of the amount paid by them. The Colonisers also pleaded absence of any knowledge that the respondent was putting up in the plot.