SHASHIKALA BAI Vs. ASHARFI DEVI

JUDGEMENT

(1.) The appellant/defendant has filed this appeal under Section 96 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 31.3.2003 passed by the Court of Special Judge NDPS and Additional District Judge, Gwalior in Case No.23-A of 2002 whereby, the suit filed by the plaintiff/respondent Asharfi Devi pertaining to the house bearing No. 502 (old) Halka No.6 and New No.575 and Halka No.21 situated at Pingle Sahab Ka Bada, Chhatri Mandi, Janakganj, Lashker, Gwalior for specific performance of agreement and permanent injunction has been decreed. In this appeal, the appellant is referred as 'defendant' and respondent no.1 as 'plaintiff'.

(2.) The admitted facts in the case are that the defendant no.1 Shashikala entered into an agreement on 20.10.1978 (Ex.P/1) pertaining to the house bearing No. 502 (old) Halka No.6 New No.575 and Halka No.21 situated at Pingle Sahab Ka Bada, Chhatri Mandi, Janakganj which is called 'disputed house' in this case with the plaintiff for consideration of Rs. 21,875/- and received Rs.1000/- as part consideration of the agreement wherein, it was also agreed that the defendants Shashikala and Ramarao Pingle will file an application before Urban Land and Ceiling Authority for permission to sell the disputed house to the plaintiff. The said permission was granted in Case No.214/78-79/B-121 vide order dated 2.4.1979.

(3.) The facts, in brief, of the plaint are that the appellant/ defendant entered into an agreement to sell to the plaintiff/respondent no.1 and took Rs.1000/- as earnest money and thereafter took Rs.6235/- total Rs.7225/-. The plaintiff further stated that the defendant did not comply with the terms and conditions of the agreement to sell Ex.P/1 which were to be complied with by him before execution of the saledeed. It was further stated by the plaintiff that he had been ready and willing for getting the sale deed executed in her favour for which, she got the notices Ex.P/22 dated 6.6.1979, Ex.P/20 dated 20.6.1979 and Ex.P/24 dated 22.7.1979 issued to the defendant through her Advocate but the defendant did not perform the agreement and avoided to execute the sale deed on the false pretext. The defendant had taken the stand that she is not exclusive owner of the property for getting the sale deed executed in favour of the plaintiff. The plaintiff further pleaded that even if the defendant no.1 is not the owner of the property, it will not affect the agreement since the defendant no.1 has executed and signed the agreement and so, she is estopped from saying that she is not the owner of the property in dispute and bound to execute the sale deed in favour of the plaintiff. On the basis of above allegations, the suit was filed for specific performance of agreement dated 20.10.1978 or alternatively to refund Rs.40,000/-.