RAM KUMAR Vs. RATTAN PARKASH

JUDGEMENT

(1.) THIS is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of fact recorded by both the Courts below holding that the agreement of sale set up by the defendant-appellants dated 8.7.1977 (Ex. D2) has not been proved on record and the agreement to sell Ex. P2, dated 17.7.1977 between the plaintiff-respondent No. 1 and defendant-respondent Nos. 2 to 7 has been proved. Accordingly, the suit of the plaintiff-respondent No. 1 has been decreed in his favour and against the defendant-appellants, who have also claimed to have entered into an agreement to sell with defendant-respondents 2 to 7. A decree for possession has been passed in favour of the plaintiff- respondent No. 1 and against the defendant-appellants as well as defendant- respondent Nos. 2 to 7.

(2.) THE case of the plaintiff-respondent No. 1 is that the owner of the house in question, namely, defendant-respondent Nos. 2 to 7 had entered into an agreement to sell with him for a total sale consideration of Rs. 25,000/- out of which Rs. 5,000/- had already been paid by him to the aforementioned defendant-respondents. An agreement was executed on 17.7.1977 (Ex. P-2) in favour of the plaintiff-respondent No. 1, which was recorded by Shri Ram Rattan (now represented by defendant-respondent Nos. 4 to 7) with his own hands in the presence of Kali Ram and Om Parkash, defendant-respondent Nos. 2 and 3. An amount of Rs. 5,000/- was paid in cash and the balance payment of Rs. 20,000/- was to be paid at the time of registration of the sale deed. They promised to get the sale deed executed at Meham on 30.7.1977 but they failed to reach Meham from Delhi. The plaintiff-respondent No. 1 came to know that they were trying to sell the house to someone else and in order to defeat any such attempt he sent an application dated 20.7.1977 to the Register, Delhi, that no sale deed be registered in favour of any third party. He has always been ready and willing to perform his part of the contract, which is proved by the fact that he waited for defendant-respondent Nos. 2 to 7 in the office of Sub Register, Meham on 2.8.1977 and 3.8.1977. He made applications to the Register, Meham on the aforementioned dates. But defendant-respondent Nos. 2 to 7 failed to turn up. He served a legal notice upon the aforementioned defendant-respondents to get the sale deed executed at Meham on 9.8.1977 but they failed to turn up. A copy of the notice dated 4.8.1977 was also sent to the defendant-appellant. Another attempt was made calling upon the defendant- respondent Nos. 2 to 7 to come to the office of Sub Register on 16.8.1977 but they fail to do so. A registered notice was served on 24.8.1977 upon them requesting them to execute the sale deed on 5.9.1977. A reply was sent by the aforementioned defendant-respondents on 2.9.1977. However, the defendant- respondent Nos. 2 to 7 had executed the sale deed at Delhi on 26.8.1977 in favour of the defendant-appellants despite the existence of agreement to sell between plaintiff-respondent No. 1 and the defendant-respondent Nos. 2 to 7. The defendant-appellants were requested by the plaintiff-respondent No. 1 not to change the nature of the suit property by making any structural changes. He sent a notice by telegram to them on 1.10.1977.

(3.) IN their separate written statement, defendant-appellants took the stand that there was a valid agreement to sell between them and defendant-respondent Nos. 2 to 7 for the purchase of house in dispute for a sum of Rs. 19,500/-. An amount of Rs. 1,000/- was paid on 8.7.1977 when the agreement to sell was executed and the balance amount of Rs. 18,500/- was to be paid at the time of registration of sale deed. Accordingly, sale deed was executed on 4.8.1977 and it was registered in the office of the Registrar, Delhi on 26.8.1977. The delay in registration occurred because there was flood in Delhi and the Registrar was on flood duty. The balance sale consideration was paid before the Sub Registrar, Delhi. The agreement to sell, if any, entered into by defendant-respondent Nos. 2 to 7 in favour of the plaintiff-respondent No. 1 was null and void.