SANKAR PRASAD DASH Vs. MANJULATA DASH AND ORS.

JUDGEMENT

(1.) THIS appeal has been filed challenging the judgment and decree dated 16.03.2010 and 30.03.2010 respectively passed by the learned Civil Judge (Senior Division), Bhubaneswar in Civil Suit No. 328 of 2005.

(2.) RESPONDENT No. 1 as plaintiff filed the suit against defendant No. 1 -respondent No. 2 for specific performance of contract for sale of the disputed land measuring Ac.0.05 dec. in plot No. 103, under Khata No. 1032/288 situated in mouza -Sahid Nagar, Bhubaneswar.

(3.) DEFENDANT No. 1 filed his written statement stating that it had been agreed that the suit land be sold in favour of the plaintiff and her husband for a consideration of Rs. 31,00,000/ - and accordingly agreement was executed and notarized before the Notary Public on 15.12.2004. On the same day, the plaintiff requested defendant No. 1 to execute another agreement for sale in respect of the suit property indicating the consideration amount at Rs. 23,35,200/ - for the purpose of securing a bank loan and for getting permission for sale from G.A. Department and accordingly another agreement was prepared, but defendant No. 1 did not sign the same. Thus, as per plaintiff's request two agreements were executed on 15.12.2004. It is further stated that though it had been agreed between the parties that Rs. 5,00,000/ - shall be paid as advance consideration money, not a single pie was paid by the plaintiff or her husband. The so called sale agreement (Ext.1) was taken away by the plaintiff, who started playing with the defendant. It is stated that the plaintiff has not come to the court in clean hands and, therefore, she is not entitled to the discretionary, equitable relief of specific performance. It is stated that the suit agreement is manufactured one in which the plaintiff has substituted some new typed pages. It is specifically denied that defendant No. 1 agreed to sell the suit land to the plaintiff for Rs. 23,35,200/ - and that he would himself apply to the G.A. Department for necessary permission for transfer. Since there was no such understanding the defendant did not file application before the G.A. Department for permission. It is also denied that the plaintiff paid Rs. 3,00,000/ - on the date of the agreement and Rs. 2,00,000/ - about a week later to defendant No. 1. It is stated that since there was no such agreement to sell the property for Rs. 23,35,200/, there was no question of making an application by the defendant for permission and that the notice issued to defendant No. 1 and the notice published in the newspaper by the plaintiff was intended to create some evidence in her favour. It was also stated that the suit was bad for non -joinder of the G.A. Department, Government of Orissa as a party and for want of cause of action.