GURDIAL SINGH & ANR Vs. BRIJ LAL

JUDGEMENT

(1.) This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court, whereby while accepting the appeal, suit of the plaintiff-respondent was decreed for possession by way of specific performance of the agreement in question in stead of the alternative relief as decreed by the trial Court.

(2.) The plaintiff-respondent filed a suit for symbolic possession by way of specific performance of the agreement to sell dated 20.9.2005 for the land in question measuring 2 bighas 5 biswas on payment of balance sale consideration along with consequential relief of permanent injunction restraining the defendant-appellants from alienating the suit land in any manner. The aforesaid suit was filed by the plaintiff-respondent on the averments that the defendant-appellants portraying themselves to be the owners in possession of the suit property executed an agreement to sell in his favour on 20.9.2005 for a total sale consideration of Rs.12,37,500/- and agreed to sell the land in question and further received a sum of Rs. 2,00,000/- as earnest money in the presence of their witnesses. The last date for execution of the sale deed was fixed as 19.2.2006. The possession of the suit property was delivered to the plaintiff-respondent at the time of execution of the agreement to sell dated 20.9.2005. It is the further case of the plaintiff-respondent that 19.2.2006 being a holiday, he contacted the defendant-appellants for execution and registration of the sale deed in his favour on some other date and appellants agreed that they will reach in the office of Sub Registrar on 17.2.2006 for the said purpose.

(3.) The plaintiff-respondent was present in the office of Sub Registrar, Kalka on 17.2.2006 along with balance sale consideration amount and necessary expenses for stamp papers etc. He waited for the appellants for the whole day but they did not turn up. Then the plaintiff-respondent got his presence marked in the office of Sub Registrar, Kalka by way of affidavit which was duly attested by the Executive Magistrate, Kalka. The plaintiff-respondent enquired from the appellants about the reason for not turning up on 17.2.2006, upon this, they apologized and fixed 20.2.2006 for execution and registration of the sale deed. Accordingly, the plaintiff-respondent again reached the office of Sub Registrar, Kalka on 20.2.2006 but the defendant-appellants did not turn up. He again got his presence marked by way of an affidavit. The plaintiff-respondent again visited the office of Sub Registrar, Kalka on 21.2.2006 along with balance sale consideration and necessary expenses but of no use. Hence the suit. The defendant-appellants in their written statement submitted that agreement in question is not a registered document and the plaintiff-respondent had failed to perform his part of agreement to sell dated 20.9.2005, though they admitted the fact of execution of agreement to sell with the plaintiff-respondent for a sale consideration of Rs.12,37,500/- and also admitted receipt of sum of Rs.2,00,000/- as earnest money. It was further admitted that last date for execution of sale deed was 19.2.2006. However, handing over of the possession of the land in question was denied. It was further alleged that it was the plaintiff-respondent who was not ready and willing to perform his part of agreement and was not interested and did not get the sale deed executed in his favour on payment of balance sale consideration. It was further submitted that the plaintiff-respondent was not present in the office of Sub Registrar, Kalka on 17.2.2006. Defendants further alleged that the plaintiff was not having the balance sale consideration with him on 20.2.2006. So the question of his readiness for performance of his part of agreement to sell does not arise. Thus, it was prayed that the suit be dismissed.