ANIS FATIMA SHAFI UDDIN Vs. JAGDISH SINGH

JUDGEMENT

(1.) POONAM Srivastava, J. This second appeal has come up for final hearing alongwith Writ Petition No. 32294 of 1990.

(2.) THE writ petition was filed chal lenging the orders dated 20-4-1989 and 17-5-1990 in Original Suit No. 1081 of 1986, Shafiuddin v. Mughisuddin & Anr. , deciding issue Nos. 4 and 5. THEse two issues were framed and decided as a preliminary issue. Issue No. 4 was regarding Section 10 C. RC. and issue No. 5 was on the question of jurisdic tion. Learned 5th Additional Civil Judge, Meerut decided issue No. 5 holding that the jurisdiction to decide the suit is with the Court at Hapur, District Ghaziabal THE finding0 arrived at by the Additional Civil Judge 5th, that Meerut Courts had no jurisdiction was on the basis that the disputed property was situated at Hapur. THE disputed agreement to sale was also executed before the Sub Registrar, Hapur and, therefore, after the new district was carved out, Meerut Court had no jurisdiction to hear and decide the Meerut. THE Court at Meerut declined to record its finding on issue No. 4 vide order dated 20-4-1989. THEse orders were challenged by filing Misc. Appeal No. 162 of 1989 in the Court of IIIrd Additional District Judge, Meerut. Misc. Appeal was also dis missed vide judgment dated 17-5-1990. THE aforesaid two orders are impugned in the writ petition which is being decided alongwith second appeal. Subsequently the plaintiff-respondent instituted O. S. No. 172 of 1988, Jagdish Singh & Anr. v. Shafiuddin & Anr. at Ghaziabad. THE suit was decreed on 6-12-1995 THE judgment and decree was challenged in Civil Appeal No. 15 of 1996 which was dismissed on 18-11-1996 by the IIIrd Additional District Judge, Ghaziabad. Both the judgments are challenged in the instant second appeal.

(3.) THE Original Suit No. 172 of 1988 was for specific performance of the contract. An agreement to sale was executed on 9-9-f986. THE case of the plaintiff is that the defendant No. 1 is the owner of the disputed property. He alongwith one Majharuddin executed a power of attorney on 22-6-1983. THE registration was done in the office of Sub-Registrar, Meerut. THE defendant No. 2 was given the authority to enter into the transaction in respect, of the land situated in Delhi, Ghaziabad, Mawana and Meerut THE agreement to sale was entered into on the oasis of said power of attorney in respect of the land shown at the foot of plaint for an amount of Rs. 2, 20, 000/-, Rs. 1, 90, 000/- was paid as earnest money in the office of Sub-Registrar, Hapur at the time of execution of agreement to sale. It was agreed upon between the parties that the sale-deed will be executed on the basis of the aforesaid agreement on or before 31-12-1987. THE defendants were required to the obtain certificate from the income Tax Department before the execution of the sale-deed. THE defendants, despite request by the plaintiff failed to get the requisite certifi cate from the Income Tax Department and execute the sale-deed. With a view to usurp the earnest money, an Original Suit No. 1081 of 1986 was instituted in the Court of Civil Judge. Mpr, 'jt which the Courts dismissed on a preliminary issue holding that the Meerut Court had no jurisdiction. A notice was sent to the defendants which was replied by them denying the power of attorney and the subsequent agreement to sale. THE suit was instituted by the contesting plain tiff- respondent for specific perfor mance. A number of issues were framed by the trial Court. THE suit was decreed on 6-12-1995. THE appellant preferred a regular first appeal in the Court of 3rd Additional District Judge Ghaziabad. THE judgment and decree of the trial Court was confirmed and the appeal was dismissed vide judgment dated 18-11-1996. Both the judgments are under challenge in this second ap peal. This second appeal is admitted on the following questions of law: (1) Whether the suit in question was li able to be stayed under Section 10 C. P. C. on the ground that the question of the validity of Mukhtarnama was pending decision of the High Court in a Writ Petition? (2) Whether a copy of the Mukhtarnama could have been acted upon in the absence of production of original or in the absence of proper procedure being adopted for putting in secondary evidence ? (3) Whether the relief was barred for lack of proof on the question or payment by the plaintiffs to defendant No. 2 in view of the two contradictory statements regarding pay ment?