MAHINDER Vs. RAJ KUMAR RATHI

JUDGEMENT

(1.) Appellant-plaintiff has filed this regular second appeal challenging judgments and decrees dtd. 22/9/2014 and 28/7/2017 passed by the learned Additional Civil Judge (Senior Division), Gurgaon and learned Additional District Judge, Gurugram, respectively, whereby suit for possession by way of specific performance of agreement dtd. 9/1/2001 filed by the plaintiff, has been dismissed.

(2.) Brief facts necessary for adjudication of the appeal are that, appellant/plaintiff filed a suit for specific performance of agreement to sell dtd. 9/1/2001 with the averments that defendant No.1 was the owner of plot No.50 measuring 1.5 Kanals situated at Sector 21, Urban Estate Gurgaon vide allotment/intimation No.8650 dtd. 19/5/1986. Plot in question was under litigation as defendant No.4 i.e., Haryana Urban Development Authority (HUDA) had no such site at the spot, therefore, another plot bearing No.20 in Sector 5, Urban Estate, Gurgaon vide allotment No.130 dtd. 24/8/1997 at a new rate, was offered to defendant No.1. It is pleaded that defendant No.1 entered into an agreement to sell dtd. 9/1/2001 in respect to the said plot for a sum of Rs.15,00,000.00 out of which appellant/plaintiff paid a sum of Rs.5,00,000.00 to defendant No.1 at the time of execution of the agreement. Remaining consideration amount was agreed to be paid by appellant/plaintiff to defendant No.1 at the time of transfer of the said plot by HUDA department/execution and registration of sale deed in his favour, which would be done when defendant No.1 would secure possession of the newly offered plot. Appellant/plaintiff further pleaded that it was agreed that defendant No.1 would give one month's notice to the plaintiff after taking possession of the newly offered plot.

(3.) However, defendant No.1 failed to execute the sale-deed in terms of the agreement to sell, whereas the plaintiff was and is always ready and willing to perform his part of the contract. Plaintiff, it is asserted, came to know that defendant No.1 executed a power of attorney in favour of defendant No.2 on 31/10/2001 in respect to the plot in question, registered with the Sub-Registrar, Nuh and that defendant No.2 with a mala-fide and dishonest intention transferred the said plot in favour of his wife, defendant No.3, without any sale consideration and without the knowledge and notice of defendant No.1. It is pleaded that on inquiry from HUDA on 20/12/7 plaintiff came to know that defendant No.2 had already contracted to sell the plot to one Dalip Singh by way of agreement, who had further informed defendant No.4 on 6/6/2005 not to transfer the said plot to anyone. It is pleaded that defendants No.2 to 4 had colluded with each other and transferred the abovesaid plot in favour of defendant No.3. Appellant/plaintiff called upon defendant No.1 to admit claim of the plaintiff and execute sale-deed in his favour in terms of the agreement dtd. 9/1/2001 after receipt of balance sale-consideration, but defendant No.1 refused to do so on 20/12/2007. Hence, the suit was filed on 24/12/2007.