NARESH CHAND GUPTA Vs. BRAHAM PRAKASH

JUDGEMENT

(1.) The plaintiff (the appellant herein), being the owner of property No. 1047, Nanak Chand Basti, Gurdwara Road, Kotla Mubarakpur, New Delhi, entered into an agreement to sell dated 20.10.1987 in respect of part of the said property i.e. southern portion of the property measuring 150 Sq. yards (hereinafter referred to as the suit property). Total consideration was fixed at Rs. 4,70,000/-. At the time of entering into the agreement to sell with the defendant No. 1 (the respondent No. 1 herein), a sum of Rs. 75,000/- was paid by the defendant No. 1 to the plaintiff. Balance amount was to be paid by 31.1.1988. However, the defendant No. 1 agreed to pay Rs. 30,000/- extra over and above the earlier agreed consideration. On 17.12.1987, the defendant No. 1 paid Rs. 1 lac. On 6.9.1988 a further sum of Rs. 1,90,000/- by means of draft and cash amount of Rs. 1,10,000/- was given. Further sum of Rs. 10,000/- was given on 20.12.1988. On that date i.e. 20.12.1988, the plaintiff executed power of attorney in favour of the defendant No. 2 (the respondent No. 2 herein) wife of the defendant No. 1. According to the plaintiff, the defendant No. 1 had agreed to construct the partition wall on north side of the property to divide north side portion from the south portion which was agreed to be sold to the defendant No. 1. It is also the case of the plaintiff that the defendant No. 1 did not make balance payment or constructed the partition wall. Thus, the plaintiff terminated the power of attorney after waiting for about three years. The plaintiff alleged that the portion in dispute was in occupation of the tenants of the plaintiff i.e. Banshi Lal, Brahm Pal, S/o Chiman, Smt. Laxmi W/o Late Laxmi Narian, Munshi Ram Pal and Rajpal. The defendants took the possession of the portions which were in the tenancy of the aforesaid tenants except the portion which was in the tenancy of Rajpal. The defendants also forcibly obtained the possession of the portion of the premises, in which the plaintiff was in possession i.e. room with store. According to the plaintiff the possession of the defendants in respect of the said portions and premises is illegal and unauthorised. Vide notice dated 2.2.1994, the plaintiff terminated the agreement and thereafter filed suit No. 326/98 in the trial court praying for decree of possession, declaration and mesne profits. By this suit, the plaintiff wanted back the southern portion of the property, possession whereof was with the defendants. He also wanted declaration to the effect that the defendants had no right, title or interest in the suit property and agreement dated 20.10.1987 was null and void. Consequently, the plaintiff also wanted mesne profits @ 2000/- per month from the date of filing the suit till actual possession on the ground that the defendants were in unlawful possession of the said premises. He had, however, stated that he was prepared to refund the amount of Rs. 3,80,000/- given by the defendant No. 1 to the plaintiff pursuant to the agreement to sell as and when the possession was handed over to the plaintiff by the defendants.

(2.) The defendants filed the written statement and took number of preliminary objections. It was contended that the suit was barred under the provisions of Order 2 Rule 2 CPC; defendants were entitled to the protection of Section 53A of the Transfer of Property Act; the suit was time barred; it was not signed, verified and instituted by a duly authorised person. On merits, it was admitted that there was agreement to sell for purchase of suit property measuring approximately 150 sq. yards for a consideration of Rs. 4,70,000/- and that the defendants had also agreed to pay extra amount of Rs. 30,000/-. Their defence, however, was that since they had obtained possession of the suit property by virtue of agreement to sell and had also paid substantial consideration, the plaintiff had no right to take back the possession.

(3.) Following issues were framed by the learned trial court on the basis of the pleadings: