SURAJ MAL Vs. ZAHOOR KHAN & OTHERS

JUDGEMENT

(1.) This is an appeal against the judgment and decree dated 1.2.1988 passed by the Additional District Judge, Gurgoan by which the appeal filed by the defendant was dismissed and judgment and decree passed by the trial Court on 20.11.1985 was upheld.

(2.) The facts of the case, in brief, are that on 26.5.1980, plaintiff -respondent No. 1 Zahoor Khan filed a suit for specific performance of contract of sale against the defendant -appellant Suraj Mai, with the allegations that the defendant was the owner of the land, described in Para No. 1 of the plain and that vide agreement dated 6.10.1978, the defendant had agreed to sell the suit land to the plaintiff for a consideration or Rupees two lakhs. It was further alleged that at the time of execution of the said agreement, the defendant had taken a sum of Rs. 1,23,100/ - from the plaintiff towards the advance sale price and it was agreed that an amount of Rs. 66,900/ - was to be adjusted towards the mortgage amount for which the land stood already mortgaged while the remaining amount of Rs, 10,000/ - was to be paid before the Sub Registrar at the time of the registration of the sale deed. It was further alleged that as per the said agreement, the sail! deed was to be got executed and registered up to 15.6.1979. It was further alleged that under the rules, a no objection certificate is required from the office of Income Tax Department in case a sale deed of the amount of more than Rs. 50,000/ - is to be got registered arid in this regard, a no objection certificate' was applied for by the defendant and it was represented that as soon as, no objection certificates was issued, he would get the sale deed executed and registered in favour of the plaintiff and on this representation, the plaintiff kept on waiting for the completion of the said contract. It was alleged that the plaintiff was always ready and willing and was still ready and willing to perform his part of the contract and to pay Rs. 10,000/ - towards the balance amount to the defendant besides stamps and registration charges. It was further alleged that now the defendant had backed out from the said agreement and had intentionally not obtained 'no objection certificate' from the Income Tax Department and the defendant was not ready and willing to perform his part of contract and had in fact refused to execute the sale deed and started negotiations for the sale of the suit land to a third person. It was, accordingly, prayed that a decree for specific performance of the agreement of sale dated 6.10.1976 be passed in favour of the plaintiff and against the defendant. Subsequently, the plaintiff amended the plaint and impleaded defendant -respondent Nos. 2 to 5 as defendants in the suit, since Suraj Mai defendant -allegiant had executed a sale deed dated 22.7.1980 in favour of defendant Nos. 2 to 5 in respect of a part of the suit land, as described in para No. 5 -A of the amended plaint, after the filing of the present suit and it was alleged that the said sale made by defendant No, 1 in favour of defendant Nos. 2 to S with respect to a part of the suit land for Rs. 48,000/ - was not binding on the plaintiff and the said sale would not affect the rights of the plaintiff and the said defendant Nos. 2 to 5 were also bound by the agreement in favour of the plaintiff.

(3.) The said suit was contested by the defendants, Suraj Mai defendant -applicant, in the written statement prior to the amendment of the plaint, took up various preliminary objections and on merits, it was denied that the defendant had ever agreed to sell the suit land in favour of the plaintiff for a sum of Rupees two lakhs or that the defendant had taken sum of Rs. 1,23,100/ - from the plaintiff as advance or the he had agreed to adjust the mortgage amount or that the remaining amount of Rs. 10.00GA was to be paid before the Sub Registrar. On the other hand, it was pleaded that the financial position of the plaintiff was bad and several suits for the recovery of small amounts had been decreed against him and his own land had been under attachment in execution of these decrees and he himself was in heavy debts and was not in a position to make advance payment of Rs. 1,23,100/ -. It was alleged that the plaintiff was a Sarpanch and was in the habit of creating false evidence and it was alleged that the agreement in question was a forged document and the defendant had never consciously executed the same. It was further alleged that the story regarding the 'no objection certificate' from the Income Tax Department had also been set up to cover up the long delay. It was denied that the defendant ever represented to secure the no objection certificate from the Income Tax Department or that the plaintiff kept on waiting. It was further alleged that the question of willingness etc. on the part of the plaintiff did not arise. It was further alleged that the question of the defendant's being ready and willing to execute the sale deed did not arie, as he never entered into any agreement, as alleged. It was denied that the defendant had started any negotiations for the same with any third person. It was, accordingly, prayed that the suit be dismissed. Subsequently, after the amendment of the plaint, the defendant - appellant Suraj Mai filed the written statement to the amended plaint, taking up similar plead and it was further alleged that defendant Nos. 2 to 5, who were plaintiff's own men , had represented before him (Suraj Mai defendant) that if he would thumb mark certain documents, the plaintiff would withdraw the suit and they had also represented to him that the interim injunction had been modified. It was further alleged that he (Suraj Mai defendant) was a victim of the attack of lunacy and in that condition, if the defendant Nos. 2 to 5 obtained some sale deed in their favour for any amount, he (Suraj Mai defendant) was not aware of it as he had never executed any such sale deed consciously, nor he had received Rs. 48,000/ - or any other amounts as the consideration for the same. By way of additional plead, it was pleaded that the plaintiff being the Sarpanch, had taken him to the Teshil Office for getting the loan and had got his thumb impression with the deed -writer and in that manner, the plaintiff may have secured the agreement, the plaintiff may have secured the agreement and the same is void. The defendant Nos. 2 to 5, after the amendment of the paint in their joint written statement admitted that defendant No. 1 had executed the sate deed dated 22.7.1980 with regard to a part of the suit land in their favour for Rs, 48,000/ - but it was pleaded that they were bonafide purchasers for consideration and without notice. It was denied that they were aware of the alleged agreement of sale and the pendency of the present suit. It was further alleged that in this view of the matter, the sale in their favour, was perfectly legal and valid and was binding on the plaintiff.