SMT. INDRA Vs. DHARAM PAL SINGH

JUDGEMENT

(1.) The instant Second Appeal is preferred against judgment and decree dtd. 15/1/2004 passed in the First Appeal No. 356 of 1983,Smt. Indra Vs. DharamPal Singh, by the Court of First Additional District Judge, Haridwar (in short "the appeal"), by which the judgment and decree dtd. 26/8/1983 passed in Original Suit No. 83 of 1982, Dharampal Vs. Raja Ram by the Court of First Additional Civil Judge, Roorkee (Shaharanpur)(for short "the suit") has been confirmed.

(2.) Facts necessary for the disposal of the instant appeal, briefly stated, are as follows; The respondent filed the suit against Raja Ram for specific performance. During the pendency of the suit, Raja Ram died, therefore, his daughter Smt. Indra was substituted. Initially, the appeal was filed by Smt. Indra Devi in this Court, but, after her death, her legal representatives have now been substituted as appellants. It is the case of the respondent that Late Raja Ram agreed to sale his half share admeasuring 7 Bigha, 10 biswa 17 biswansi,17 KachvansiPukhta situated in Khasra No.184 Village MaujaSethpur, ParganaManglore, Tehsil Roorkee, ZilaShaharnpur(for short "the suit land") to him for a consideration of Rs.23,000..00An agreement of sale was executed on 4/7/1980 (for short 'the agreement') and Rs.4,500.00 as advance were paid by the respondent to Late Raja Ram. The remaining amount was to be paid at the time of execution of the sale deed. It was agreed between the parties that the sale deed would be executed within two years since then. Late Raja Ram did not execute the sale deed. A notice was given on 27/4/1981 by the respondent to him but he gave a wrong reply on 1/5/1981. Again, a notice dtd. 16/6/1982 was given to Late Raja Ram by the respondent requiring him to appear for execution of the sale deed but despite service, he did not appear on 3/7/1982, the date fixed in the notice, for execution of the sale deed. On these grounds the suit was filed seeking specific performance of the agreement and related reliefs.

(3.) Late Raja Ram filed written statement in the suit. According to him, he never executed any agreement of sale in favour of the respondent; in the month of July, 1980, the wife of Raja Ram, namely, Smt. Atari was seriously ill and for her treatment, Raja Ram was short of money, therefore, he took Rs.3,000.00 as loan from the respondent. The respondent agreed to advance the loan of Rs.3,000.00 on the condition that in the next two years, Raja Ram would return him Rs.4,500.00 and as a security of the loan, a mortgage deed was executed. It is the case of Raja Ram that after advancing loan, respondent took him to court where certain documents were executed. He was asked to sign those documents and if by playing fraud, an agreement of sale has been executed by the respondent, Raja Ram is not bound by it.