BARAHAM PARKASH Vs. VISHAL MITTAL & OTHERS

JUDGEMENT

(1.) The plaintiff-appellant is in second appeal before this Court.

(2.) The plaintiff-appellant filed a suit for declaration to the effect that he is owner in possession of the shop-cum-flat in dispute and the sale deed executed by defendant no.2 in favour of her son defendant no.1 is illegal, null and void, not binding on the rights of the plaintiff-appellant. Plaintiff-appellant further prayed for the relief of permanent injunction restraining the defendants from dispossessing the plaintiff-appellant from the shop-cum-flat as fully described in the head note of the plaint. It was pleaded that defendant no.3 had purchased the suit property i.e. Shop-cum-flat no.9 vide registered sale deed dated 3.1.1983. An agreement to sell in respect to the suit property was executed by defendant no.3 in favour of the plaintiff on 27.3.1989 and the total sale consideration of Rs.49,000/-was paid and even the possession of the suit property had been delivered to the plaintiff-appellant. The last date for execution of the sale deed was fixed as on or before 31.3.1991. It was pleaded that defendant no.3 had executed a Power of Attorney in favour of defendant no.2, who is the daughter of the plaintiff-appellant and defendant no.2 had extended the period of execution of the sale deed for a period of 5 years. It was further pleaded that defendant no.2 had connived with defendant no.1 and had executed a sale deed pertaining to the suit property on 24.7.1995. The case set up by the plaintiff-appellant was that he had already become owner in possession of the suit property by virtue of the agreement to sell dated 27.3.1989, whereby the full and final sale consideration had already been paid to defendant no.3 and the possession had also been delivered to the plaintiff-appellant. It was also averred that the plaintiff-appellant had always been ready and willing to perform his part of the contract regarding execution of the sale deed but since defendants no1 and 2 were threatening to further alienate the suit property and to dispossess the plaintiff-appellant, accordingly the suit had been filed.

(3.) Upon notice, defendant no.1 filed a written statement stating therein that the plaintiff-appellant was neither owner nor in possession of the suit property. Defendant no.1 claimed to be in possession as he had purchased the same. A stand was taken by defendant no.1 that the agreement to sell pertaining to the suit property had been entered into between the defendant no.2 and defendant no.3 and even the sale consideration amount had been paid by defendant no.2. It was also pleaded that defendant no.2 is the daughter of the plaintiff-appellant and on account of such proximity of relationship the signatures of defendant no.2 had been taken on blank papers and accordingly the acknowledgment as regards extension of time had been prepared fraudulently by the plaintiff-appellant. Defendant no.2 filed an independent written statement taking up a similar plea that the agreement to sell had been effected between defendants no.2 and 3. The sale consideration had been paid by defendant no.2. The fact of the plaintiff-appellant being owner as also in possession of the suit property was denied. It was pleaded that the relations between father and daughter i.e. plaintiff-appellant and defendant no.2 had become strained and accordingly the plaintiff-appellant had even filed complaints against her and her husband in the year 1996. Defendant no.3 also filed a written statement denying the plaintiff-appellant to be owner in possession of the suit property. The execution of the agreement to sell pertaining to suit property on 27.3.1989 in favour of plaintiff-appellant was admitted by defendant no.3. Even the date for execution and registration of sale deed i.e. 31.3.1991 was also admitted. Defendant no.3 took up the plea that the plaintiff-appellant had conveyed to him at the time of execution of the agreement to sell that the flat-cum-shop was actually being purchased for his daughter Shimla Rani i.e. defendant no.2 and it was on account of such reason that a Power of Attorney had been executed in favour of her i.e. defendant no.2. As the plaintiff-appellant had failed to get the sale deed executed within the prescribed period in terms of the agreement dated 21.3.1989 as such it was prayed by defendant no.3 that the plaintiff-appellant is not entitled to any relief and the suit be dismissed.