VIRENDRA PAGARE Vs. DHARMESH JAIN

JUDGEMENT

(1.) This appeal under Sec. 96 of the Code of Civil Procedure has been preferred by defendant No.2 being aggrieved by the judgment and decree dtd. 4/2/2002 passed in Civil Suit No.33-A/1997 by the Second Additional District Judge, Indore, whereby the claim of plaintiff/respondent No.1 for specific performance of contract dtd. 5/5/1998 has been decreed.

(2.) The claim of plaintiff is that defendant No.1 had entered into an agreement with him for sale of the suit property, which is a flat bearing number 301, for a consideration of Rs.3.50 lakhs on 5/5/1995. A written agreement was also executed between them on that day and entire sale consideration was also paid by plaintiff to defendant No.1 who had agreed that she would soon deliver possession of the suit flat to him and shall execute the requisite sale deed in his favour. She had also requested that even though there is an averment in the agreement that possession has been handed over to plaintiff, but she may be permitted to retain possession till she finds alternate accommodation for herself. The plaintiff accepted the said request but defendant No.1 did not deliver possession to her. On 15/10/1997 she assured the plaintiff that she would execute the sale deed in his favour within a week. After a week when plaintiff went to the flat she was met by defendant No.2 who stated that he is the owner thereof and is residing therein in that capacity. On inquiry defendant No.1 stated that she has given the suit flat to defendant No.2 for residence for some time. Plaintiff then asked defendant No.1 to execute the sale deed in his favour, but she refused to do so and defendant No.2 also refused to deliver possession of the suit flat to him.

(3.) On such contentions, on 4/5/1998 the plaintiff instituted an action for specific performance of contract dtd. 5/5/1995.