BHAGABATI SAHOO Vs. KALPANA MISHRA

JUDGEMENT

(1.) This appeal is filed assailing the judgment and decree dated 19.05.2011 and 05.07.2011 passed by the learned Civil Judge (Senior Division) Dhenkanal in CS No. 251 of 2010 dismissing the suit filed by the appellant for specific performance of contract and permanent injunction along with other ancillary relief.

(2.) Case of the plaintiff in short is that the defendant is the recorded owner in respect the suit land pertaining to Khata No. 738/1720, Plot No. 1950/4281, Kissam Gharabari, measuring an area of Ac.0.120 decimal in Mouza: Badasathabatia in the district of Dhenkanal. A building having RCC roof is standing over 1400 square feet over the suit land. Since the defendant was in dire need of money she contacted the plaintiff, who happens to be her close acquaintance, for sell of the suit land and the building standing thereon. The plaintiff agreed to the proposal to purchase the same for a consideration of Rs. 11.00 lakh. An agreement was also executed between the plaintiff and the defendant and on the date of execution of the agreement defendant received a sum of Rs. 8.00 lakh out of the total consideration. The agreement was attested before one Pankaj Lochan Parida, Notary, Dhenkanal who put his seal and signature after the plaintiff, defendant, attesting witnesses as well as the Advocate put their hand on it. On the date of agreement for sale, the defendant handed over the physical possession and key of the building to the plaintiff in presence of the attesting witnesses and neighbour. The defendant also assured the plaintiff to change the electricity supply in the name of the plaintiff after execution of the registered sale deed. Accordingly, the plaintiff along with her family members are residing in the suit premises. There was cordial relationship between the parties till 10.05.2010 on which date, the defendant unreasonably demanded the rest of the consideration money to the tune of Rs. 3.00 lakh and threatened the plaintiff to dispossess on failure thereof. Though the plaintiff sought for some time to arrange the money, she did not pay any heed to the request of the plaintiff and contacted another person to alienate the said premises for a consideration of Rs. 14.00 lakh. When the intervention of local gentries was also went in vain plaintiff filed the suit for the aforesaid relief.

(3.) Defendant filed her written statement along with counter claim under Order 8 Rule 6A, CPC refuting the claim of the plaintiff. The defendant pleaded that the suit was not maintainable as there was no cause of action to file the suit and the plaintiff has fabricated the document to grab the suit property taking advantage of the cordial relationship of the parties. She has also forged the signature of the defendant on the alleged agreement for sale. She has no locus standi to bring the suit for specific performance of contract. She further pleaded that the husband of the plaintiff and the elder brother of the husband of the defendant were close friends and due to such relationship, the plaintiff approached the defendant to stay in the suit house, but the defendant expressed her unwillingness stating that the construction of the house was not complete by then and some minor works were left to be done. However, the plaintiff's family agreed to adjust with the same and stayed in the suit house as caretaker and to look after the construction of the building to which the defendant could not deny. After staying there for three to four months, the defendant asked them to vacate the house, but the plaintiff and her family members expressed their difficulty and requested to continue to stay in the suit house as tenant on monthly rent of Rs. 4,000/ -excluding electricity charges for a period of three to four months. However, the plaintiff failed to keep her words and did not pay rent with effect from 01.04.2008. They also started misusing the electricity and on surprise check, it was detected that they had bypassed electricity supply for which penalty was imposed on the defendant. Due to non -payment of dues, the electricity supply was disconnected. Looking at the state of affairs, the defendant requested the plaintiff to vacate the said house, but she went on avoiding on one plea or other and engineered the idea to manufacture the agreement for sale to grab the property. The defendant also specifically denied the allegation of accepting Rs. 8.00 lakh towards advance and existence of deed of agreement for sale. Along with the written statement, the defendant also filed a counter claim for eviction of the plaintiff/appellant from the suit house and recovery of the arrear rent. Hence, the defendant prayed for dismissal of the suit and to pass a decree of eviction of the plaintiff and recovery of arrear rent in the counter -claim. No written statement was filed by the plaintiff to the counter -claim.