SHUBH LAXMI GRIH NIRMAN SAHAKARI SANSTHA MARYADIT, INDORE Vs. SURESH @ GOPAL S/O AMBARAM AND FIVE OTHERS

JUDGEMENT

(1.) The present first appeal before this Court is arising out of judgment and decree dated 13/10/1998 passed by 4 th Additional District Judge, Indore in Civil Suit No. 8A/1996.

(2.) The plaintiff before the trial Court, a Cooperative Society, has filed the suit for specific performance of the contract, declaration and permanent injunction and the same has been dismissed by the trial Court.

(3.) Facts of the case reveal that the suit property bearing Survey No. 22/2, area 4. 97 acres, is situated at Patwari Halka No. 10, Village Bijalpur, Tehsil Indore. Earlier the suit property was part of Survey No. 22 under the ownership of one Fakir Chand Khati and Fakir Chand Khati expired on 15/3/1985 and his wife Ramkunwarbai expired on 2/12/199 After the death of Fakir Chand Khati, Survey No. 22 came into the share of one Ramnarayan, admeasuring 4. 97 acres, Survey No. 22/1 came into the share of Ramkunwarbai and Survey No. 22/2 came into the share of Suresh, area 4. 97 acres. The aforesaid partition took place on account of an order passed by the Revenue Court dated 19/2/1987 in Case No. 4A-27/85-86. The plaintiff Society, which is a Registered Society under the M. P. Cooperative Societies Act, 1960, entered into an agreement on 12/11/1993 with defendant No. 1 Suresh through his Power of Attorney Narendra Singh Punia, an agreement to sell was executed for selling the land for 1. 05 lacs. A sum of Rs. 20,000/- was received, as stated in the plaint by the defendant No. 2 who was the power of attorney holder and an amount of Rs. 20,000/- was paid on 12/12/1993, again Rs. 20,000/- on 12/1/1994 and again Rs. 20,000/- on 12/2/1994 and the remaining amount of Rs. 25,000/- was paid on 25/2/1994. It was also stated that in the agreement to sell defendant No. 5 Ramandeep Singh, who is son of defendant No. 2 Narendra Singh Punia, the power of attorney holder has also put his signatures. It was also pleaded that defendant No. 1 has placed defendant No. 2 in possession of the suit property and the defendant No. 2 has placed the plaintiff Society in possession. On account of the agreement to sell dated 12/11/1993 possession was delivered as stated by the plaintiff on 12/12/199 It was also pleaded by the plaintiff that inspite of the fact that the entire consideration has been paid the sale deed is not being executed and on 29/3/1994 the defendant No. 2 wrote a letter to the plaintiff society, of which a reply was given by the society on 19/4/1994 and thereafter defendant No. 2 filed a suit against the plaintiff, defendant No. 1 and defendant No. 6 before the District Judge ie. , Civil Suit No. 23/1994 for declaration of title and for declaring the agreement of sell as null and void. A prayer was also made for grant of injunction. However, the suit was dismissed in default on 30/9/1995. It has been further stated in the plaint that defendant No. 1 on 29/4/1994 published a notice in Dainik Agniban that the power of attorney issued by defendant No. 1 in favour of defendant No. 2 - Narendra Singh Punia has been cancelled and the plaintiff also got a notice published in Dainik Agniban on 4/5/1994 that the agreement of sell was executed in favour of the plaintiff Society and the plaintiff Society is in possession of the suit property. On 12/6/1995 public notice was published in Dainik Bhaskar again in respect of the suit property and the defendant No. 2 - Narendra Singh Punia who got certain sale deeds executed in favour of his wife and his children. The documents on record reveals that as the sale deed was not being executed, the plaintiff has filed a suit for specific performance of the contract against the original land owner Suresh and has also impleaded the power of attorney as defendant No. 2.