UMESH GAUR (DECEASED) Vs. SHAMSHER RANA & ANR

JUDGEMENT

(1.) This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugning the judgment of the trial court dated 10.1.2018 by which the trial court has decreed the suit for specific performance filed by the respondents/plaintiffs with respect to the suit property admeasuring 16 Bighas and 15 Biswas of land comprised in Khasra nos. 505(4-16), 506 (4-16), 509 (4-16) and 511 (2-07) situated in Village Mukhmelpur, Delhi 110036.

(2.) The facts of the case are that with respect to the suit property parties entered into an agreement to sell dated 29.1.2006/Ex.P-1. The seller was the original defendant in the suit, namely, Sh. Umesh Gaur who died pendente lite and the present appellants being the legal heirs were substituted as defendants in place of Sh. Umesh Gaur. Total consideration under the agreement to sell was Rs.87,23,958/- and respondents/plaintiffs paid a sum of Rs.10,00,000/- to the appellants/defendants as earnest money under the agreement to sell. Balance amount was to be paid by the respondents/plaintiffs at the time of execution of the sale deed on or before a date fixed being 13.4.2006. For execution of the sale deed the appellants/defendants had to take the necessary No Objection Certificate (NOC) from the revenue authorities.

(3.) Suit was contested by the appellants/defendants who pleaded that the agreement to sell is void because it is hit by Section 33 of the Delhi Land Reforms Act, 1954 (hereinafter referred to as „the Act?). It was pleaded that as per Section 33 of the Act if a seller after the sale of his land which is the subject matter of the agreement to sell has remaining with him less than 8 standard acres then the agreement has to be treated as illegal. It was pleaded that the appellants/defendants besides holding the subject land in Village Mukhmelpur also owned 9 Bighas and 12 Biswas of land situated in Village Khera Khurd and consequently the subject agreement to sell is hit by Section 33 of the Act. In the written statement appellants/defendants have denied being the exclusive owner of the agricultural land, which is the subject matter of the agreement to sell and that the appellants/defendants in fact were only co-owners to the extent of 335 shares out of the total of 1800 shares and which becomes clear from the revenue record placed on record (Ex.D-1). Entering into the agreement to sell between the respondents/plaintiffs and the appellants/defendants was not denied and the appellants/defendants also did not deny receiving of Rs.10,00,000/- under the subject agreement to sell. Appellants/defendants pleaded that they were always ready and willing to complete their obligations and had in fact even applied for the NOC on 14.2.2006 itself within the time prescribed by the agreement and that it was the respondents/plaintiffs who had failed to arrange payment of the balance sale consideration resulting in frustration of the agreement to sell. The fixing of the date on 13.4.2006 for execution of the sale deed before the Sub-Registrar was denied and it was also denied that respondents/plaintiffs had got the bank drafts prepared for the balance sale consideration. Suit was hence prayed to be dismissed.