SASMITA DASH Vs. DHIRENDRA NARAYAN ACHARYA AND ORS

JUDGEMENT

(1.) In this appeal the appellant challenges the judgment dated 17.11.2012 passed by the Additional Civil Judge (Senior Division), Puri in C.S. No. 8/632 of 2012/2009. The plaintiff-appellant filed the aforesaid suit against defendant No. 1 for specific performance of contract of sale. The plaintiff's case is that defendant No. 1 is the owner of the suit land with a house standing thereon which has been let out to different tenants. The plaintiff and her husband were staying on rent on the backside of the suit house and looking after the house on behalf of defendant No. 1, who is a resident of Cuttack and casually visits the suit property. Defendant No. 1 having decided to sell the property asked the plaintiff's husband to arrange a buyer. The plaintiff offered to purchase the suit property and accordingly an oral agreement was reached between the plaintiff and defendant No. 1 on 07.11.2009 for sale of the suit property in favour of the plaintiff for a consideration of Rs. 35,00,000/- and on the date of agreement advance consideration of Rs. 1,50,000/- was paid to defendant No. 1. It was stipulated that the balance consideration would be paid within a month at the time registration of the sale deed. It is the further case that the plaintiff after collecting balance consideration requested defendant No. 1 to execute the sale deed, but the latter played hide and seek, even though the plaintiff was always ready and willing to perform her part of the contract. Finding no other alternative, the plaintiff filed the suit for specific performance of contract for sale. During the pendency of the suit, defendant No. 1 sold the suit property in favour of defendant No. 2 by registered sale deed dated 05.04.2010.

(2.) Defendant No. 1 filed a written statement denying the oral agreement of sale with the plaintiff and receipt of earnest money of Rs. 1,50,000/- on the date of the agreement, i.e., 07.11.2009. It was specifically stated by him that the plaint averments are false, frivolous and baseless. It was also stated that the suit was not maintainable in view of Section 17 of Indian Registration Act read with Section 55(d) of the Transfer of Property Act.

(3.) Defendant No. 2 filed a written statement denying the plaint averments. It was stated by him that after making due enquiry he purchased the suit property from defendant No. 1 at a consideration of Rs. 40,00,000/- and was delivered with possession and, therefore, he has acquired valid right and title over the suit property.