BALWINDER KAUR Vs. HARJIT KAUR

JUDGEMENT

(1.) This is an appeal by appellant Balwinder Kaur, who was defendant before the Court of learned Additional Civil Judge, (Senior Division) Barnala, in a suit preferred by plaintiff-Harjeet Kaur respondent before this Court. In the said suit the plaintiff had sought a decree against defendant for specific performance of agreement to sell dated 13.9.1999. The contentions are that plot surrounded by a passage consisting of Gali, on eastern side 70 feet wide, on western side house of Joginder Singh, 70 feet wide northern side house of Paramjit Singh and 19 feet wide street on southern side situated in S.A.S. Nagar, Barnala, owned by the defendant. Claiming that on the representation of the defendant, an agreement to sell dated 13th September, 1999 Ex.P1 was executed, which was also entered into the register of Deed Writer by way of Ex.PW4/A, between the parties for a total value of Rs. 1,50,000/- out of which Rs. 1,00,000/- was received as earnest money by the defendant and balance amount of Rs. 50,000/-was to be paid at the time of execution of the sale deed which was to be executed by 15th March, 2000. It is claimed that possession of this plot was handed over to the plaintiff at the time of execution of agreement to sell Ex.P1, wherein, all the terms and conditions were duly incorporated. It is alleged that at the due date the plaintiff called upon the defendant to undergo her part of obligation in getting the sale deed registered but to no avail. Thereafter, plaintiff moved an application Ex.P2 before the Sub-Registrar for marking her presence which was done by way of Ex.P4. On failure of the defendant to execute the sale deed led to the filing of the instant suit on 27th May, 2000.

(2.) After putting an appearance, defendant filed written statement taking preliminary objections that the plaintiff was estopped by her own act and conduct from filing the suit and has no cause of action for the same. It is averred that the property, subject matter of the suit was the house owned by the defendant and in case the decree prayed for is granted, she will be rendered roofless. The defendant has also taken the plea that the agreement was without consideration and an outcome of fraud as Gora Singh husband of the plaintiff who is in police department had fraudulently obtained her signatures/thumb impression as well as of her husband on blank papers and subsequently incorporated the agreement. On merits has accepted the property being in the ownership of the defendant and claimed to be in its possession. However, terming the agreement to be an outcome of fraud and deception has denied absolutely having ever entered into an agreement to sell as claimed by the plaintiff and sought dismissal of the suit.

(3.) The plaintiff has reiterated her stand by way of replication and the learned trial Court vide order dated 14.9.2000 framed the following issues:-