JAI BHAGWAN Vs. JINARDHAN AND ANOTHER

JUDGEMENT

(1.) The present appeal has been filed by the plaintiff, who is aggrieved against the concurrent findings of the Courts below whereby suit for specific performance of the agreement to sell dated 19.11.1992 has been rejected. The plaintiff had filed the suit on 23.4.2004 wherein it was alleged that defendant no.1 (who happens to be his brother) had agreed to sell part of his house measuring 117- 1/2 yards i.e. 70'-6" X 15' consisting of one room, courtyard in front having approach from a common passage 11' wide connecting the house with the main road . The boundaries of the house were also mentioned in the plaint. The alleged sale consideration was of Rs.10,000/- and the amount was paid in cash and a separate receipt had been executed. It was alleged that actual possession had been delivered to defendant no.1 which was marked by letters ABCD in the site plan and the agreement was partly performed and the total sale consideration had been paid. It was agreed that valid and proper sale deed would be executed within 15 days from the date of demand and in case of failure, the plaintiff would be entitled to get a sale deed executed by filing the suit for specific performance. The allegations in the plaint was that in violation of the agreement to sell, defendant no.1 illegally transferred the property in favour of defendant no.2 on 4.2.2004 and defendant no.2 was well aware of the agreement in favour of the plaintiff. It was accordingly contended that since actual possession was already delivered by defendant no.1 in part performance of the agreement to sell dated 19.11.1992, therefore, defendant no.2 was also bound by the said agreement to execute a valid sale deed in favour of the plaintiff. Accordingly, on coming to know the sale deed dated 4.2.2004, a legal notice was served upon on the defendants, on which they had started threatening the plaintiff to take forcibly possession of the house in dispute shown in letters ABCD in red colour and if they succeed in doing so, the plaintiff would suffer irreparable loss and injury. The cause of action was alleged to have accrued on 7.4.2004 and, accordingly, a decree of specific performance of agreement to sell was prayed for and that possession may be delivered to the plaintiff of the house in question.

(2.) In the written statement filed by defendant no.1, it was alleged that the property had been sold by registered sale deed No.6587 dated 4.2.2004 for a sale consideration of Rs.70,500/- and vacant and physical possession of the property had been delivered to defendant no.2 and the plaintiff was not in physical possession of the property. It was denied that there was any agreement to sell or any receipt had been executed and if there was any such agreement to sell and any receipt, the same were based on fraud because the plaintiff and answering defendant are real brothers and previously having good terms and the plaintiff might have fraudulently got the signatures by misrepresenting the facts and the agreement was null and void. It was also contended that the suit of the plaintiff was time barred as the present suit having been filed on 23.4.2004 after a gap of more than 11 years. The falsehood in the contract was pleaded since physical possession was never with the plaintiff and that defendant no.2 was in possession. The factum of receiving the amount of Rs.10,000/- was also denied and that defendant no.2 being in possession was a bonafide owner. It was pleaded that notice was duly replied by defendant no.2 and similarly, the written statement filed by defendant no.2, who also took the plea that suit filed after 11 years was not maintainable and no possession had been delivered to the plaintiff and the answer defendant being a bonafide purchaser was owner in possession of the suit property vide sale deed dated 4.2.2004. It was also contended that notice was replied vide letter dated 21.4.2004 and the suit was filed in collusion with the defendant No.1 vendor. It was also contended that defendant No.2 had no knowledge about alleged contract between the plaintiff and defendant no.1 and he had been delivered vacant and physical possession of the house in dispute by defendant no.1 at the time of registration of sale deed.

(3.) In replication, the plaintiff took the plea that as per the agreement, limitation would start within 15 days from the date of service of notice and notice was sent on 7.4.2004. It was also alleged that defendant no.2 had illegally demolished the room measuring 15' X 12' which existed in the suit property and he was bound to restore the position as it existed at the time of filing of the suit and it was alleged that defendant no.1 being real brother had become dishonest and colluded with defendant no.2 and had sold the suit property.