JEEWA BAI Vs. BHAGWANTI

JUDGEMENT

(1.) THIS is a second appeal against the judgment and decree in first appeal passed by the learned Additional District Judge -III, Bhiwani dated December 18, 2009 affirming the findings on all other issues in the judgment and decree of the Civil Judge (Junior Division), Bhiwani in Civil Suit No.277 of 2004 dated February 20, 2008 except issue No.1 by modifying the finding to the extent that the appellant -plaintiff is not entitled to specific performance of contract of sale of property but is only entitled to refund of agreed sale consideration i.e. to say Rs.1,67,350/ - paid as earnest money as indicated in the agreement to sell subject to handing over vacant possession to the respondent within two months from the date of the decision.

(2.) AGGRIEVED by the above modification and of the judgments of the Courts a quo the plaintiff has approached this Court for setting aside of the orders in appeal praying for allowing of the suit.

(3.) IN the present case, the agreement to sell suit property executed by the plaintiff and the defendant are admitted with respect to the corpus property. However, the proposed vendor suffered a legal disability to transfer the land to the proposed vendee since his wife had secured an order of maintenance by a competent Court against him in a petition under Section 125 Cr.P.C. and the suit property stood attached due to nonpayment of arrears of maintenance. The land under sale agreement measures 7 Kanal 12 Marlas as per Jamabandi for the year 1993 -94. The total sale consideration was Rs.1,67,350/ - when the contract was signed on February 03, 1998 upon which the entire sale consideration had been paid and received by the vendor. Admittedly, possession of the property was handed over to the plaintiff pending execution of conveyance deed transferring right in property. There was a recital that the plaintiff would be entitled to get the sale deed executed and registered as and when required by the plaintiff.