KISHAN CHAND Vs. SITA RAM

JUDGEMENT

(1.) A close relationship of the parties is no guarantee of cordiality between human beings. The aforesaid message is loudly conveyed by this appeal filed by defendant under Section 100 of the Code of Civil procedure, 1908 (for brevity, 'the Code') challenging the judgment and decree dated 15-1-1991 passed by the learned Additional District judge, Rewari. He has reversed the findings recorded by the learned civil Judge in his judgment and decree dated 28-2-1989. The defendant-appellant has also challenged the findings of facts. The following questions of law have arisen for determination in this appeal; (i) could the defendant-appellant enter into an agreement to sell dated 30-9-1966 in respect of the suit property with plaintiff-respondent No. 1 de spite the fact that he was not then its owner; (ii) What is the legal consequence of delivery of possession of the property to plaintiff-respondent No. 1; (iii) whether the agreement to sell dated 30-9-1966 was validly cancelled on 31-12-1974 and the sale deed executed in favour of defendant-respondent Nos. 2, 3 and one Dr. Ramjas (Dr. Ramjas is now represented by his legal representatives defendant-respondents 4 to 11 ).

(2.) IT would be necessary to make a brief reference to the facts. Plaintiff-respondent No. 1 filed Civil Suit No. 734 of 1981 on 12-31981 against the defendant-appellant as well as defendant-respondent nos. 2, 3 and one Dr. Ramjas for possession of the suit property viz. two storeyed house bearing Municipal No. 2066 to 2072 and 19081909 situated at Gokal Bazar, Rewari by seeking specific performance of agreement to sell dated 30-9-1966. According to the averments made in the suit, plaintiff-respondent No. 1 had paid a sum of Rs. 55. 000/- to the defendant-appellant in consideration of sale of two storied house situated in Gokal Bazar, Rewari as per the municipal numbers given in the plaint along with all the rights appurtenant thereto. The property, which was subject-matter of agreement to sell, was purchased by the defendant-appellant from the Rehabilitation department in an open auction in the year 1957. However, when the agreement to sell dated 30-9-1966 was executed, the sale certificate was yet to be issued which was eventually issued on 29-3-1978, The details of the sale consideration of Rs. 55. 000/- paid to the defendant-appellant has also been given showing as to how the aforementioned amount was to be utilised by the defendant-appellant :- (a) Rs. 23,500/- was to be paid by the defendant-appellant to Lala Sri Ram son of Durga Parsad Mahajan resident of Rewari; (b) Rs. 11,000/-was to be paid to Daulat Ram son of Parma Nand resident of Rewari as security, The amount was remitted vide receipt dated 17-7-1978 to aruna Devi daughter of Daulat Ram and Sham Sunder, adopted son of daulat Ram; (c) An amount of Rs. 15,644. 25/-was paid to Shiv Sahai son of Tej Ram vide receipt dated 6-2-1967 and; (d) a sum of Rs. 4,500/- was paid In cash to defendant-appellant which was the balance amount. It was further alleged that the defendant-appellant. In part performance of the agreement to sell, delivered the possession of two shops bearing Municipal Nos. 2067 and 2072 to plaintiff-respondent No. 1 with the right to receive the rent of the remaining shops. It was also been claimed by plaintiff-respondent No. 1 that he has been paying the house tax. When the defendant-appellant failed to execute the sale deed despite issuance of sale certificate on 26-91978, plaintiff-respondent No. 1 issued a legal notice dated 7-3-1981 through his counsel to him alleging that despite receiving the entire sale consideration, he has failed to perform his part of the contract. It was further alleged that Shop No. 2071 was sold to Subhash Chander son of Hukam Chand (defendant-respondent 2) by a registered sale deed dated 5-3-1981 and another shop bearing No. 2072 along with all rights appurtenant in respect of Shop No, 2072 was sold to Anand kumar, minor son of Hukam Chand through Hukam Chand (defendantrespondent 3 ). It was further alleged that Shop No. 2070 was sold to dr. Ramjas after filing of suit. Dr. Ramjas is represented by his LRs, defendant- respondent Nos. 4 to 11. It was further alleged that Dr. Ramjas purchased Shop No. 2070 from the defendant-appellant despite the fact that an application was made before the Sub Registrar with a prayer to restrain defendant-appellant from execution of the sale deed. Even a telegram was sent to the Registrar. The telegram was duly received by the Registrar before the execution of the sale deed.

(3.) IT is appropriate to mention that the parties are closely related. Sita ram, plaintiff-respondent No. 1, is brother-in-law (wife's sister's husband) of Dharam Chand and Daulat Ram. Defendant-appellant, kishan Chand is real brother of Dharam Chand. Sita Ram plaintiff-respondent 1 was issueless and had adopted son and daughter of daulat Ram.