GANPAT SINGH SACHAN Vs. BRIJENDRA SWAROOP SACHAN

JUDGEMENT

(1.) Heard Shri D.P. Singh, learned Senior Counsel assisted by Shri Siddharth Niranjan for the appellant and Shri Siddharth, learned counsel who has filed his power on behalf of the respondent.

(2.) This is the defendant's appeal. An Original Suit No. 1262 of 2005 was filed by one Brijendra Swaroop Sachan, respondent herein for a decree of specific performance of the agreement of sale dated 27.2.1985 which according to him was executed by one Neeraj Sachan son of Ganpat Sachan, the defendant appellant in respect of plot no. 820, Block-A Scheme MIG (KUDP), Barra, Kanpur Nagar. The plaintiff's case was that Neeraj Sachan son of Ganpat was allotted the plot in question by the Kanpur Development Authority under a lottery system by allotment order dated 17.4.1985. The case of the plaintiff further was that Neeraj Sachan executed an agreement to sale on 11.3.1987 in his favour to execute the sale deed. According to the terms and condition of the lessor, the Kanpur Development Authority, a Higher Purchase Agreement was executed by the Kanpur Development Authority in favour of Neeraj Sachan on 25.3.1987 in respect of the plot in question. A possession letter dated 31.7.1989 was also executed between the lessor, Kanpur Development Authority on one hand and the lessee Neeraj Sachan on the other hand. Neeraj Sachan died in an accident on 18.2.1990. On 7.4.2005 the Kanpur Development Authority executed a Free Hold Deed in favour of Brijendra Swaroop Sachan as heir of the deceased Neeraj Sachan. It is stated that the total price of the plot in question was about Rs. 80,921.62/- and all the instalments have already been paid towards free hold. The instalments were also paid in the name of Neeraj Sachan (the allottee/lessee). The plaintiff's case is that he requested the defendant on 31.7.2005 to execute the sale deed of the plot in question in terms of the agreement of sale dated 11.3.1987 but the same was refused by the defendant, upon which the plaintiff served a notice dated 2.8.2005 requiring the defendant to be present in the court of Sub Registrar concerned on 18.8.2005. On 18.8.2005 the defendant did not appear in the office of the Sub Registrar and, therefore the plaintiff was compelled to file the suit. Written statement was filed. The case of the defendant appellant in the written statement was that the agreement of sale dated 11.3.1987 was never executed by Neeraj Sachan and that the alleged agreement of sale dated 11.3.1987 alleged to have been registered on 27.2.1988 was executed by an impostor.

(3.) The trial court dismissed the suit by its judgement dated 29.11.2010. Aggrieved the plaintiff filed an appeal before the first appellate court. The Appellate Court framed the following issues: