RAO NARAIN SINGH Vs. DURGA DEVI

JUDGEMENT

(1.) THIS is plaintiffs' second appeal directed against the judgment of the Court below whereby suit of the plaintiffs for possession by way of specific performance of the agreement of sale dated 21. 12. 1984 relating to the house in dispute has been dismissed.

(2.) IN brief, the facts are that one Durga Devi now represented after her death by her daughter and daughter's daughter (respondent (i) and (ii) herein) was the owner of the house measuring 475 sq. yards in Ballabgarh. According to the plaintiffs, she agreed to sell the house to the plaintiffs for a consideration of Rs. 2. 12,000.00 and in this regard, executed agreement of sale on 21. 12. 1984. At the time of execution of the agreement, plaintiffs paid a sum of Rs. 5,000.00 as earnest money and the remaining consideration was to be paid before the Sub-Registrar at the time of Registration of the said sale-deed. In respect of half portion of the house, plaintiffs were to get the sale-deed executed and registered on or before 31. 3. 1985 on payment of half of the amount and for the remaining half portion, plaintiffs were to get the sale-deed executed and registered on or before 30. 6,1985. It is the case of the plaintiffs that they had always been ready and willing to perform their part of the contract in accordance with the terms of agreement of sale and for that matter, they approached Durga Devi to execute the sale-deed in accordance with the terms of the agreement, who in turn with a malafide intention demanded a sum of Rs. 5000/over and above the sale consideration already agreed between the parties, but the plaintiffs did not agree to the said unjust and illegal demand of Durga Devi. It is further the case of the plaintiffs that Durga Devi was informed through telegram dated, 27. 3. 1985 to come to the office of the Sub-Registrar on 29. 3. 1985, because 30. 3. 1985 and 31. 3. 1985 were holidays, and to execute the sale-deed in favour of the plaintiffs but she did not come present as requested. Instead she threatened to sell the suit property in favour of a third party and so, under compelling circumstances two suits for injunction for restraining her from selling the suit property to the third party, were filed. Plaintiffs also averred in their plaint that after the institution of suits, plaintiffs came to know that Kulbhushan, respondent No. 2 (defendant No. 2 in the suit) had filed an application before the Deputy Commissioner, Faridabad, Under Section 41 of the Indian Stamp Act, seeking permission to make up the deficiency on the amount of stamp duty in respect of agreement of sale dated 2. 10. 1984 regarding the house in dispute. Plaintiffs objected to the course adopted by respondent No. 2. The Deputy Commissioner, Faridabad, rejected the application and did not make any endorsement on the said agreement. Plaintiffs alleged that agreement dated 2. 10. 1984 set up by respondent No. 2 is a forged and fictitious document and has been created in collusion with Durga Devi. Plaintiffs thus, prayed that they are entitled to the decree for specific performance of the contract of sale dated 21. 12. 1984 and in the alternative, decree for recovery of Rs. 2,12,000.00 as damages. On notice of the suit, Durga Devi and Kulbhushan (respondents 1 and 2 respectively) contested the suit by filing separate written statement. 'in her written statement, Durga Devi alleged that prior to the agreement of sale in favour of the plaintiffs, she on 2. 10. 1984 had contracted to sell with Kulbhushan (respondent No. 2) the house in dispute for a consideration of Rs. 2,12,000/ -. She further submitted that Kulbhushan had paid Rs. 1000.00 as earnest money at the time of execution of the agreement and further paid Rs. 4000.00 on 12. 10. 1984. She also submitted that Kulbhushan was put in possession of the house in part performance of the contract. In regard to the agreement of sale in favour of plaintiffs, she submitted that one Subhash Grover, a deed-writer of Ballabgarh, was doing the business of real estate with Rao Narain Singh, appellant No. 1, and Radhey Sham Gupta, husband of plaintiff No. 2. She submitted that Subhash Grover was well acquainted with her since long. The said Subhash Grover along with plaintiff No. l and husband of plaintiff No. 2 contacted her many a times for selling her house to them and she told them about agreement dated 2. 10. 1984 with Kulbhushan but they induced her to enter into agreement to sell and on their inducement, she signed agreement to sell dated 21. 12. 1984 in favour of the plaintiffs. She in her written statement has given in detail the manner in which she was induced, and submitted that she being an old lady genuinely believed in the utterances made by three of them. She also submitted that she herself was not in a position to discover the truth and thus, failed to appreciate the true facts, meanings and scope of agreement of sale dated 21. 12. 1984. She, therefore, submitted that plaintiffs had obtained the alleged agreement of sale dated 21. 12. 1984 without her free consent. Defendant No. 2 Kulbhushan apart from taking the preliminary objection with regard to suit being barred under Order 2 Rule 2, Code of Civil Procedure, in his separate written statement, submitted that Durga Devi had entered into agreement of sale in respect of the property for Rs. 2,12,000/ -. He submitted that an earnest money of Rs. 1000.00 was paid at the time of execution of the agreement and Rs. 4000.00 on 12. 10. 1984, and in part performance of the contract she delivered possession of the house in her possession to him. Defendant No. 2 further submitted that plaintiffs had the knowledge of agreement of sale dated 2. 10. 1984 and therefore, any subsequent agreement was of no consequence. Plaintiff in their, replication denied the averments made in the written statements and reiterated what they had submitted in their plaint.

(3.) WHETHER the defendant No. 2 in collusion with the defendant No. 1 forged a writing purported to be an agreement to sell? OPP.