SAMUNDER SINGH Vs. RAM KANWAR

JUDGEMENT

(1.) This order of mine shall dispose of regular second appeal bearing No.2843 of 2009 and cross objection bearing No.38-C of 2012 filed in the same. The appellant-plaintiff is in regular second appeal against the concurrent finding of fact whereby the suit seeking specific performance of agreement dtd. 7/6/1994, has been dismissed and the cross objection bearing No.38-C of 2012 is at the instance of subsequent vendee-defendant No.8 who purchased the land in dispute vide six sale deeds bearing Wasika Nos.17306 dtd. 23/1/1996, 17308 dtd. 19/1/1996/23/1/1996, 17310 dtd. 23/1/1996, 17313 dtd. 19/1/1996/23/1/1996, 17315 dtd. 19/1/1996/23/1/1996, 17318 dtd. 19/1/1996/23/1/1996.

(2.) Mr. Arun Jain, learned Senior Counsel assisted by Mr. Varun Parkash, Advocate appearing for the appellant-plaintiff submits that the suit aforementioned was filed on 3/4/1997 seeking specific performance of the agreement to sell in respect of the suit property on the premise that defendant Nos.1 to 6 had entered into agreement to sell dtd. 7/6/1994 @Rs.2,50,000.00 per acre. An amount of Rs.9.00 lacs was paid by the plaintiff to the defendants as part payment of sale consideration. A separate receipt in this regard was also executed. The balance sale consideration was settled to be paid at the time of execution and registration of the sale deed i.e. on or before 31/12/1994. As per clause (v) of the agreement to sell, the defendants were to obtain No Objection Certificate from the Income Tax Department and in case, they failed to do so before the appointed date, the time of execution of the sale deed shall stand extended, therefore, filing of the suit in April, 1997 cannot be said to be wanting compliance of the provisions of Sec. 16(1)(c) of the Specific Relief Act, 1963. The plaintiff had always been ready and willing to perform his part of the contract and was ready with money for payment to defendant Nos.1 to 6 but they did not bother to apply No Objection Certificate from the Income Tax Department. The plaintiff served defendant Nos.1 to 6 with legal notice dtd. 15/12/1994. However, the plaintiff acquired knowledge that the sale deeds aforementioned have been executed by defendant Nos.1 to 6 in favour of defendant No.8. The aforementioned sale deeds were executed on GPA i.e. alleged GPA given to defendant No.7, which was illegal, void and without consideration and as result of fraud and misrepresentation. In fact, defendant Nos.1 to 6 never authorized defendant No.7 to create any charge or enter into any further sale deed as the possession of the suit land was delivered to the plaintiff at the time of execution of the agreement. The defendants No.1 to 6 admitted in the written statement that they were co- owners in the land, who came out with plea that they never executed sale deeds and the sale deeds were nullity. In fact, the transaction between defendant Nos.7 and 8 was benami.

(3.) The appellant-plaintiff examined, Jagat Ram, Astt. Registration Clerk from the office of Sub Registrar, Gurgaon as PW1, Balwan Singh as PW2 and Samunder Singh as PW3 and Fakira Singh as PW4. The defendants Ram Kanwar DW1 and DW2 Ramesh Kumar deposed in favour of the plaintiff. Service of legal notice Ex.PW4/A through UPC has been proved through testimony of Fateh Singh Raghav, Advocate, PW4 as per receipt PW4/B.