RAMESH CHANDRA Vs. SARITA RASTOGI

JUDGEMENT

(1.) The above appeal under section 96 of C.P.C. is against the judgment and decree dated 8.12.2004 passed by Civil Judge (Senior Division) Allahabad in Original Suit No. 104 of 2000, Smt. Sarita Rastogi v. Ramesh Chandra and others, where by the Court below has decreed the suit for specific performance of contract to sell dated 15.11.1988 and 16.11.1988 by providing that the defendants will execute the sale-deed after giving adjustment of Rs. 3,15/000/- out of Rs. 6,00,000/-, within one month. The plaintiff, in pursuance of the finding returned under issue No. 3 shall deposit the balance Court fees. The respondent wherein instituted the aforesaid mentioned suit on the allegations that the defendants (appellants herein) on 15.11.1988 agreed to sell a parcel of land measuring 88 x 127 square meters (1003.32 square meters) for a sum of Rs. 3,60,000/- out of which 75,000/- was given, as advance. It was agreed that the said parcel of land being Nazul property (lease hold property), the defendants will get the lease renewed and shall obtain permission, from the State Government/Collector to sell the plot in favour of the plaintiff. The State Government sanctioned the grant of renewal of lease and even the format of lease deed was typed out on stamp paper but at that moment it was transpired that there is violation of some of the conditions of lease. Therefore, the Collector', Allahabad demanded compounding charges from the defendants but the defendants failed to make the payment of the compounding charges. Although the defendants assured that the matter will be worked out and after renewal/grant of the fresh lease, application for permission will be moved for sale of the demise property in favour of the plaintiff, which they failed to do so. A notice was served by the plaintiff to the defendants to do the needful in the matter, otherwise suit for specific performance will be filed. The receipt of the notice was acknowledged but as a Peshbandi, the defendants issued a notice to the plaintiff and offered to return back the part of the sale consideration paid in advance to the plaintiff. The plaintiff has all along being ready and willing to perform her part of the contract in terms of the agreement for sale dated 15.11.1988. The plaintiff was assured by the defendants that they will complete the formalities and get the site of the land converted into free hold as per the new free hold policy issued by the State Government and the plaintiff will pay the proportionate free hold charges and sundry expenses over and above the agreed terms and conditions. The plaintiff on the assurance given by the defendants also filed application for conversion of the lease hold land into free hold which has been denied by the Collector, Allahabad, there being no nomination in her favour by the defendants. The defendants on account of escalation of prices during the last three years have become dishonest and have refused to transfer the property in her favour, hence the suit.

(2.) The defendants filed written statement contesting the plaint allegations. The execution of the agreement to sell dated 15.11.1988 is admitted. However, it was stated that two agreements were simultaneously executed on 15.11.1988, one is registered one which is in dispute and the another is unregistered one and is dated 16.11.1988. Under the unregistered agreement sale consideration was fixed at Rs. 6,00,000/- and the defendants were paid a sum of Rs. 1,40,000/- cash and Rs. 75,000/- through cheque. The second agreement is unregistered one and was executed by the plaintiff to avoid the payment of stamp duty and to hide it from the Income Tax Department.

(3.) The defendants came out with the case that the original lease was in favour of their ancestral Shri Shanker Lal Vaish who expired on 23.1.1966 but the two renewals of the lease of 30 years each, were due. The defendants applied for renewal of the lease which was denied by the Collector, Allahabad and therefore, the sale-deed could not be executed in favour of the plaintiff. Faced with this situation, a registered notice dated 1.6.1995 was given to the plaintiff informing her the factual situation and asking her to take back the advance money by making it clear in explicit terms that the contract to sell in view of the non renewal of the lease by the Government, has become infructuous and incapable of being performed. It was replied on 30.6.1995 by the plaintiff on incorrect facts.