MANGAT SINGH Vs. RAKESH KUMAR GUPTA

JUDGEMENT

(1.) This regular second appeal of defendant No. 1 is directed against the judgment and decree dated 24.11.2008 passed by learned Additional Civil Judge (Sr. Divn.), Karnal whereby suit for possession by way of specific performance and declaration filed by respondent No. 1- plaintiff has been decreed and against the judgment and decree dated 15.09.2009 passed by learned Additional District Judge, Karnal whereby appeal preferred by appellant has been dismissed. For convenience sake, hereinafter, reference to parties is being made as per their status in civil suit.

(2.) The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for possession by way of specific performance of agreement to sell with the averments that on 14.11.2000, defendant No. 1 had executed an agreement to sell the suit land to the plaintiff on payment of sale consideration of Rs. 2,25,000/- per acre and he had paid him Rs. 2,70,000/- as earnest money at that time. The sale deed was to be executed on or before 09.10.2001 and prior thereto, defendant No. 1 was liable to repay the loan availed by him creating a charge over the suit property, but despite repeated requests, defendant No. 1 did not clear the said loan nor he was present before the Sub Registrar, Karnal on 09.10.2001 i.e. date fixed for execution of the sale deed. It was further pleaded that the plaintiff remained present in the office of Sub Registrar along with registration charges etc. and got marked his presence. The plaintiff was/is and has always been ready and willing to perform his part of the agreement. However, defendant No. 1 executed sale deed No. 7135 dated 12.12.2001 with regard to land measuring 16 kanals in favour of defendant No. 2 on the basis of jamabandi for the year 1996-97 claiming himself to be the owner of 1/6th share in land measuring 172 kanals in village Mehanmati, but share of defendant No. 1 in joint holdings was only 28 kanals 13 marlas out of which he had sold away 16 kanals to defendant No. 2. Defendant No. 1 was left with only 12 kanals 13 marlas which was insufficient to execute the sale deed in pursuance of the agreement in question. The plaintiff served notices dated 10.12.2002 and 22.12.2003 upon defendant No. 1 to get the sale deed executed and registered in his favour on the basis of agreement to sell dated 14.11.2000, but to no avail. Hence by filing the suit, a prayer was made for specific performance of the agreement to sell dated 14.11.2000 and for declaration that sale deed dated 12.12.2001 executed by defendant No. 1 in favour of defendant No. 2 is illegal and the same be set aside.

(3.) Upon notice, defendant No. 1 filed written statement and resisted the suit taking preliminary objections of locus standi, cause of action, limitation and fraud. It was pleaded that defendant No. 1 had borrowed a sum ofRs. 50,000/- from the plaintiff for his domestic requirements on 20.10.1999 and in lieu of that, the plaintiff had obtained signatures of defendant No. 1 on blank papers and also in the register of petition writer as security of borrowed amount. On receipt of legal notice dated 02.11.2000, defendant No. 1 came to know that the alleged agreement is a forged and manipulated document and on that day, defendant No. 1 had paid Rs. 25,000/- to the plaintiff in the presence of Amrik Singh son of Ajaib Singh. Thereafter, the matter was hushed up and remaining amount of Rs. 25,000/- was to be paid within six months from 02.11.2000. It was further pleaded that on 29.11.2001, defendant No. 1 had received another notice and came to know about the alleged agreement to sell dated 14.11.2000 which was created after receiving the remaining amount of Rs. 25,000/- in the month of November, 2001 and the plaintiff had agreed to return the blank papers and stamps etc. duly signed by him, after receiving remaining amount of Rs. 25,000/- but the plaintiff did not return the same and kept on postponing the matter on one pretext or the other. It was further pleaded that the plaintiff was running a business of commission agency under the name and style of M/s. Banarsi Dass Rakesh Kumar, Janta Grain Market, Karnal and defendant No. 1 was his client. By taking undue advantage of relationship between plaintiff and defendant No. 1, signatures of defendant No. 1 were taken on blank papers and various notices dated 02.11.2000, 29.11.2001, 10.10.2002 and 22.12.2003 were issued. Other averments in plaint were denied and dismissal of suit was prayed for.