SATTAR AHMED Vs. SAROJ

JUDGEMENT

(1.) This is a first appeal against judgment/decree dated 27 th September, 2016 by which the suit for possession filed by the Respondent/Plaintiff (hereinafter, "Plaintiff") has been decreed. Notice was issued in the appeal on 4th January, 2017 on which date, the Appellants/Defendants (hereinafter, "Defendants") were directed to pay a sum of Rs.10,000/- per month to the Plaintiff towards use and occupation charges of the suit premises. The Defendants submit that the payment has been made continuously to the Plaintiff.

(2.) The Defendants came into possession of the property in August, 2007 when an alleged loan of Rs.2 lakhs was advanced to the Plaintiff by Defendant No.1 and an agreement to sell was executed. The agreement to sell is not registered, though it requires registration under Section 17 of the Registration Act, 1908 (hereinafter, "Registration Act"), as it was coupled with possession. The Defendants had issued notice to the Plaintiff on 15th December, 2007 seeking enforcement of the agreement to sell as the last date for conclusion of the sale transaction was 14th December, 2007. The Plaintiff failed to comply with the requisitions in the legal notice. Accordingly, the Defendants had instituted a suit for specific performance against the Plaintiff on 16th May, 2011. The said suit for specific performance came to be dismissed on 29th August, 2011. The judgment in the said case is on record. The findings therein are:

(3.) The Plaintiff thereafter filed the subject suit for possession. The counsel for the Defendants submits that in the suit filed by the Plaintiff seeking possession, the Plaintiff has not been fair and candid. On the one hand, the Plaintiff in the plaint states that possession was given in 2011, whereas the possession was actually given in August, 2007. It is the submission of the Counsel for the Defendants that the Plaintiff has to stand on the strength of her pleaded case and accordingly, the Plaintiff has not made out a case for possession, inasmuch as conflicting pleadings were made by it. On the other hand, the Plaintiff claims that the Defendants are trespassers, however, in cross-examination, the Plaintiff admits that she gave possession to the Defendants in August, 2007 in lieu of the loan of Rs.2 lakhs.