SUKSHAM LATA Vs. JAGDISH RAM

JUDGEMENT

(1.) Defendants-appellants are in the regular second appeal against the concurrent findings of facts arrived at by both the courts below decreeing the suit for possession by way of specific performance of agreement to sell dtd. 3/3/2005. In the present case, execution of the agreement to sell, receipt of earnest money and the receipt of additional amount is not in dispute. As per agreement to sell, sale deed was to be executed and registered on 1/6/2005. It is the case of the plaintiff that he was ready and willing to perform his part of the contract and visited the office of the Sub Registrar and even got prepared a draft sale deed after purchase of the stamp papers but the defendants did not come forward to execute the sale deed. Plaintiff thereafter served a notice on the defendant on 19/6/2005. In the meantime, plaintiff came to know that some part of the land had already been acquired by the PWD Department.

(2.) In the written statement, the defendants, who are the husband and wife took a stand that they were present in the office of the Sub Registrar whereas the plaintiff did not come forward to execute the sale deed. Defendants further stated that they had come to know of the acquisition of the part of land after receipt of notice. On appreciation of evidence, both the courts below decreed the suit filed by the plaintiff and granted decree for possession by way of specific performance of the agreement to sell except the land, which has already been compulsorily acquired by the State Government. This Court has heard learned counsel for the parties at length and with their able assistance gone through the judgments passed by the courts below and the record.

(3.) Learned senior counsel appearing for the appellants submitted that in the affidavit, which was got attested by the plaintiff, it is nowhere asserted that the plaintiff is possessing remaining sale consideration either in the form of cash amount or draft. He further submitted that the agreement to sell had already been cancelled vide reply dtd. 8/7/2005, therefore in the absence of challenge to the cancellation, the suit was not maintainable. He relied upon a judgment passed by Hon'ble Supreme Court in case of I.S. Sikandar (D) By LRs vs. K. Subramani and others, 2014 (1) RCR (Civil) 236. In the present case, plaintiff in the plaint has specifically stated that he was carrying cash amount representing balance sale consideration. In the affidavit, which was got attested on 1/6/2005 from the Sub Registrar, plaintiff had stated that he was ready and willing to perform his part of the contract. Plaintiff when appeared in evidence has also stated that he was always ready and willing to perform his part of the contr . The suit was filed on 4/8/2005 i.e just two months and four days after the target date fixed in the agreement to sell. In view of the overwhelming evidence, this Court does not find any substance in the arguments of learned counsel for the appellants that since in the affidavit, plaintiff has not stated that he is carrying balance sale consideration, therefore, it must be assumed that the plaintiff was not ready and willing. The affidavit is filed only to prove that the plaintiff was present on the date when sale deed was to be executed and registered. No particular form of affidavit is required to be attested. It is only a piece of evidence to prove that the plaintiff was present. Still further, defendants in the written statement had pleaded that they were present on the date, sale deed was to be executed, however, no evidence has been produced.