LAWS(P&H)-2010-7-302

SANTRI DEVI Vs. RAJNISH KUMAR AND ORS

Decided On July 08, 2010
SANTRI DEVI Appellant
V/S
RAJNISH KUMAR AND ORS Respondents

JUDGEMENT

(1.) This appeal is preferred only at the instance of defendant No.3 against the judgment and decree of the Trial Court whereby the suit of the plaintiff has been decreed directing defendants No.1 & 2 to execute sale deed within three months from the date of decree after receiving balance sale consideration of Rs. 1,08,800/-. The defendants were also restrained from interfering in the peaceful possession of the plaintiff over the suit land.

(2.) In brief, the case of the plaintiff is that defendant No.1 (Mukesh Kumar) owner of plot measuring 84 square yards, entered into an agreement to sell it to the plaintiff through his Power of Attorney/defendant No.2 (Raj Kumar) on 17.6.2002 for a total sale consideration of Rs. 1,08,8000/- after receiving Rs. 20,000/- towards earnest money. The target date for execution of sale deed was 17.8.2002 on payment of balance sale consideration. At the time of agreement to sell, the plaintiff was put in possession of the suit property. Since, 17.8.2002 was Saturday and 18.8.2002 was Sunday, therefore, the plaintiff asked defendant No.2 to remain present in the office of Sub Registrar on 19.8.2002 for the purpose of execution of the sale deed. The plaintiff had purchased stamp papers for the registration of the sale deed of the half share of the suit property as the remaining half share was to be executed in favour of his father. It is alleged that on 19.8.2002, defendant No.2 visited the office of the concerned Registrar and on the pretext of reading the agreement to sell, he made an endorsement on its back indicating that the plaintiff had requested for execution of the sale deed in respect of half share of the suit land in favour of defendant No.3/appellant, which was though not acknowledged by the plaintiff as a result of which defendant No.2 expressed his inability to perform his part of the contract and went away from the office of the Sub Registrar. Later on, defendant No.2 refused to execute the sale deed and rather defendant No.3 and 4, on 20.8.2002, tried to trespass into the suit property and threatened to dispossess the plaintiff forcibly on the pretext that the half share of the suit property has been purchased by the appellant vide sale deed No.3454/1 dated 31.7.2002. The suit was contested jointly by defendants No.1 to 4 in which it was alleged that the impugned sale deed dated 31.7.2002, pertaining to half share of the disputed plot, was executed in favour of defendant No.3 by defendant No.2 was at the instance of the plaintiff. It is also alleged that defendant No.2 had spent an amount of Rs. 35,000/- for raising construction over the remaining portion of the suit property and if the plaintiff is ready and willing to make the payment of remaining amount of sale consideration i.e. Rs. 50,400/- and the amount spent on the construction, defendant No.2 would be ready and willing to execute the sale deed of remaining half portion of the suit property. Insofar as the possession of the plaintiff over the disputed plot is concerned that was denied. On the pleadings of the parties, following issues were framed :-

(3.) The learned trial Court while dealing with issues No.1 to 4 arrived at a conclusion that defendant no.2 being the attorney of defendant No.1 had entered into an agreement to sell with the plaintiff on 17.6.2002, who has always been ready and willing to perform his part of the contract and that sale deed dated 31.7.2002 executed by defendant No.1 in favour of defendant No.3 in respect of half share is illegal, null and void and the plaintiff was held entitled to the relief of injunction. Before the First Appellate Court also, the entire emphasis was laid on the impugned sale deed dated 31.7.2002 on the ground that the same was permitted by the plaintiff with an endorsement on the agreement to sell itself. In this regard, the learned First Appellate Court has recorded his findings as under:-