LAKHPATI DEVI Vs. RAM PAL DAHIYA

JUDGEMENT

(1.) This order shall dispose of two appeals bearing R.S.A. No. 5158 of 2013 titled as Lakhpati Devi and another v. Ram Pal Dahiya etc. and R.S.A. No. 5159 of 2013 titled as Lakhpati Devi and another v. Ram Pal Dahiya etc. However, the facts are being extracted from R.S.A. No. 5158 of 2013. The plaintiff entered into an agreement to sell with Dalbir Singh on 11.05.2007 to purchase his house measuring 196 sq. yds. for a consideration of Rs. 8,50,000/- and paid Rs. 4,50,000/- as earnest money. He was delivered possession of the property in dispute and they agreed that sale deed would be executed as and when registration of the Adarsh Colony, Tohana would be opened. It was also agreed that the defendants would pay loan amount raised against the property in dispute to the State Bank of India, Tohana branch before the registration of the sale deed. Dalbir Singh, unfortunately died on 07.08.2008. The plaintiff served legal notice upon the defendants on 22.09.2009 and 05.11.2009 for executing the sale deed on 12.11.2009 and remained present in the office of Sub Registrar, Tohana with the balance consideration and expenses etc. but the defendants did not turn up though the plaintiff got his presence marked by way of affidavit. He also convened Panchayat on 21.11.2009 where the defendants promised that they would get 'No Objection Certificate' from the Bank and would execute the sale deed in the last week of December, 2009 but still they did not perform their part of contract and instead of executing the sale deed, threatened to dispossess the plaintiff. The defendants have alleged that Dalbir Singh died because he was a habitual drunkard. They denied the execution of the agreement and receipt of earnest money by him. It is further alleged that Dalbir Singh was serving in the Market Committee, Jakhal and got government accommodation in the month of April, 2007 whereas the plaintiff was a tenant in the house in dispute and that he might have procured agreement to sell from Dalbir Singh when he was under the influence of liquor. Defendant No. 4 also filed its reply. On the pleadings of the parties, as many as six issues were framed by the learned trial Court. After receiving oral as well as documentary evidence, it was categorically held that the agreement to sell was in fact executed by Dalbir Singh in favour of the plaintiff who was ready and willing to perform part of his contract. However, the suit was dismissed on the ground that agreement to sell (Ex. P.W. 1/A) cannot be received in evidence because it was unregistered and relied upon decision of this Court in the case of Gurbachan Singh v. Raghubir Singh, 2010 3 CivCC 731. The learned trial Court, otherwise directed defendants to return the earnest money received from the plaintiff along with interest @ 18% per annum from the date of payment within a period of two months. The plaintiff filed Civil Appeal No. 40 against the judgment and decree of the trial Court against the dismissal of the suit wherein prayer was made for execution of the Sale deed, whereas the defendants No. 1 and 2 filed civil appeal No. 39 only to challenge the interest awarded by the learned trial Court to the plaintiff on the reimbursement of earnest money.

(2.) Admittedly, the defendants No. 1 and 2 did not challenge the correctness of the finding of the trial Court regarding due execution of agreement to sell and readiness and willingness of the plaintiff.

(3.) The first appellate Court decided both the appeals together and while relying upon the Division Bench judgment of this Court in the case of Ram Kishan and another v. Bijender Mann alias Vijender Mann and others., 2013 169 PunLR 195held that the plaintiff was entitled to maintain the suit on the basis of unregistered agreement to sell. Since the judgment and decree of the trial Court was reversed and the suit of the plaintiff was decreed for specific performance of the agreement to sell, the appeal filed by the defendants No. 1 and 2 in respect of interest awarded by the trial Court on the reimbursement of the earnest money was also dismissed.