UDAIVIR SINGH Vs. SUKHBIRI

JUDGEMENT

(1.) THIS first appeal, under Section 96 of the Code of Civil Procedure, 1908, is directed against judgment and order dated 06.03.1999 passed by Civil Judge (Sr. Div.), Roorkee, "District Haridwar in Original Suit No. 83 of 1995, whereby the learned Court below dismissed the suit.

(2.) BRIEFLY stated that the plaintiffs filed a suit being Original Suit No. 83 of 1995 Udaivir Singh and others Vs. Smt. Sukhbiri and others before the Civil Judge (Sr. Div.), Roorkee seeking a decree of specific performance of sale with respect to the land in dispute in pursuance of agreement to sale dated 25.04.1995, and a decree of prohibitory injunction restraining the defendants from interfering in the possession of the plaintiffs over the land in dispute. In the plaint, the plaintiffs have stated that Smt. Sukhbir/defendant no. 1 is the owner of the land in dispute, which is situated in village Kalyanpur@ Narsan Kalan, Tehsil Roorkee, District Haridwar. It is alleged in the plaint that defendant no. 1 entered into an agreement to sale of the land in dispute in favour of the plaintiffs for a consideration of Rs. 5,10,000/ -, and in lieu thereof, a registered agreement to sale (paper no. 10 -A) was executed on 25.04.1995. Out of the said sale consideration, defendant no.1 got Rs.10,000/ - as an advance and the rest amount of Rs. 50,000/ - (sic, Rs. 5,00,000/ -) was to be paid at the time of execution of sale deed. According to the agreement of sale deed was to be executed till 30.06.1996 and after the agreement of sale, possession of the property in dispute was to be transferred in favour of the plaintiffs. Accordingly, the plaintiffs entered into possession, took over the possession of the property in dispute and started cultivation over the same since 25.04.1995. It has further been asserted in the plaint that, as per agreement to sale, plaintiffs were always ready and willing to get a sale deed executed in their favour and they prompted defendant no.1 to complete the required procedure, and ultimately sent a notice to her on 26.05.1995, to remain present before the Sub -Registrar, Roorkee on 12th June, 1995. On 12th June, 1995, the plaintiffs put in their presence before the Sub - Registrar, Roorkee to accomplish their part, but defendant no. 1 rather fulfilling her legitimate duty, sent a notice to the plaintiffs, whereby she declined to execute sale deed and stated that she had transferred the property in dispute on 15.05.1995 in favour of defendant nos. 2 to 5. The plaintiffs have claimed that in existence of agreement to sale, the sale deed executed in favour of defendant nos. 2 to 5, is illegal, null and void as well. It is asserted that when an agreement to sale had been executed on 25.04.1995 in favour of the plaintiffs, defendant no. 1 was bound to execute the sale deed in favour of the plaintiffs, but the respondents/defendants are now threatening to take possession of the land in question. Rescinding the averments made in the plaint, defendant no.1 filed her written statement in which she denied that any agreement to sale was executed in favour of the plaintiffs or she received any advance, and stated that the alleged agreement to sale is based upon fraud and deceitful version. She has further stated that she is an uneducated old lady aged about 75 years and as her nephew was in custody in connection with a murder case and since her brother insisted her to become surety, trusting on her brother, she came to Roorkee on 25.04.1995 and became as surety, where her photographs was taken and her thumb impressions were obtained on some blank papers as well. If in the garb of her becoming a surety, any agreement to sale has been executed by making fraud, the same is nothing, but illegal one and cannot be binding upon her. She asserted that her brother Sukhveer Singh and her daughter Ishwarkali deceitfully completed the process of alleged agreement to sale. Rebutting all the averments made in the plaint, defendant nos. 2 to 5 filed their written statements severally with the averments that the plaintiffs are not entitled for any relief whatsoever. Defendant nos. 2 to 5 rescinded the false and fake story of execution of agreement to sale stating that neither defendant no.1 took any advance, nor she entered into any agreement; me plaintiffs were neither ready orwilling to execute the sale deed nor they put in their presence before the Sub Registrar on the alleged date or time. Rebutting all the averments made in the plaint, defendant nos. 2 to 5 have stated that the land holder Smt. Sukhbiri entered into an agreement to sale in favour of Ravindra Kumar and others (defendant nos. 2 to 5) for a sale consideration of Rs. 5,50,000/ - and on 15.05.1995, she executed a sale deed (paper no. 55 -C) in their favour. The prospective purchasers were continuing in possession of the land in dispute since prior to the agreement to sale and were cultivating the same, on contract basis, on behalf of the original land holder, and after execution of the sale deed (paper no. 55C), possession of land in dispute was formally transferred to the purchasers. It was asserted in the written statements that in the garb of the alleged agreement to sale obtained by fraud and deceitful manner, the plaintiffs are not entitled to get any relief and since the property in dispute falls in the territory of a village, where process of consolidation is pending, no prohibitory injunction can be passed, in respect of the land pending consolidation process. The suit of plaintiffs is not only barred under Section 5 (2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 but it is also barred by Section 41 of the Specific Relief Act, 1963. It has been further asserted that defendant nos. 2 to 5 are in possession of the land in question.

(3.) SUBSEQUENTLY , the plaintiffs filed an amendment application in the suit, seeking relief of possession over the land in dispute.