ISLAM AHMAD Vs. MAQSOOD AHMAD AND ANOTHER

JUDGEMENT

(1.) The suit for specific performance of the agreement to sale was dismissed and the counter claim was allowed by both the courts below. Therefore, the plaintiff appellant has preferred this Second appeal under Sec. 100 C.P.C.

(2.) The plaintiff appellant had instituted Original suit No. 983 of 2000 on the allegations that defendant respondents have agreed to sale three shop Nos. G-15,16 and 17 situate on the ground floor of Commercial Complex City Centre, 63/2 The Mall, Kanpur for a total sale consideration of Rs. 1,50,000.00. The plaintiff appellant had paid the entire aforesaid amount vide three cheques of 50,000.00 each i.e., by i) Cheque No. 764143 dated 20.8.1993, ii) Cheque No. 784144 and iii) Cheque No. 784145 dated 1.9.1998. On payment of the entire sale consideration the plaintiff appellant was put in possession of the shops on 1.9.1998 with the promise that the sale deed shall be executed in near future. Since the defendant respondents avoided execution of the sale deed despite registered notice dated 13.7.2000, the plaintiff appellants were left with no option but to institute the present suit for specific performance. The defendant respondents contested the suit by denying the plaint allegations. They contended that no agreement to sale the shops in dispute for the sale consideration of Rs. 1,50,000.00 was ever entered and executed by them. They have not even delivered possession of the shops in dispute to the plaintiff appellant. There is no written or registered agreement to sale in this regard. Therefore the suit is not maintainable. The defendant respondents through the written statement also pleaded counter claim that the plaintiff appellant has unlawfully dispossessed them on 13.12.2000 and therefore a decree of mandatory injunction be issued directing him to deliver possession of the shops to the defendant respondents. A further relief with regard to damages @ Rs. 3000.00 per month from the date of dispossession till delivery of actual delivery of possession was also set-up by way of counter claim. The Trial Court vide judgment and order dated 21.4.2005 dismissed the suit and decreed the counter claim for mandatory injunction directing the plaintiff appellant to deliver the vacant possession of the shops in dispute to the defendant respondents within one month. The Civil Appeal No. 69/05 was also dismissed by the lower Appellate Court vide judgment and order dated 4.2.2006. The courts below held that the plaintiff appellant has failed to prove any agreement to sale and the alleged oral agreement to sale the shops in dispute, if any, is not lawful in view of Sec. 54 of the Transfer of Property Act 1882 as it stands amended in its application to the State of U.P., inasmuch as an agreement to sale or transfer any immovable property worth Rs. 100.00 and above is required to be compulsorily registered. The courts below also held that as there was no agreement to sale, the story of payment of Rs. 1,50,000.00 as sale consideration is unbelievable. The said payment is not relatable to the agreement to sale. The counter claim for mandatory injunction directing the plaintiff appellants to deliver the vacant possession of the shops to the defendant respondents was decreed as a finding was recorded that the plaintiff appellant obtained possession un-authorisedly. The relief for damages as set up in the counter claim was however refused.

(3.) I have heard Sri W.H. Khan and Sri Javed Hasan Khan learned counsel for the plaintiff appellant and Sri Pankaj Agrawal for the defendant respondents.