SATYA PAL SOOD Vs. SHAKUNTLA SHARMA

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree of learned Additional District Judge, Shimla dated December 31, 1998 whereby the appeal of the Appellant was dismissed and the judgment and decree of the learned trial Court was upheld.

(2.) The facts are few and undisputed. Shakuntala Sharrha, Respondent was Plaintiff in the suit. Appellant Satya Pal Sood, Defendant, was the owner of a shed located in the land measuring 100 sq. yds., comprised in khasra number 337/H situate at Ram Parwati Niwas Shankli, Station Ward Bara _ -Shimla. He entered into an agreement with Plaintiff Shakuntala Sharma to sell this shed along with the land appurtenant thereto for a consideration of rupees 30,000/-. Rupees 10,000/- were paid to the Defendant at the time of execution of the agreement in advance. In part performance of the contract, possession of the shed along with the land, subject matter of agreement, was delivered to the Plaintiff. The shed consisted of one storied kutcha house. Plaintiff paid the balance sale consideration. Rupees 18,000/- were paid on August 5, 1986 and balance amount of rupees 2,000/- was paid on December 9, 1986 on which Defendant made an endorsement on the agreement on that date to the effect that sale deed can be executed at any time. Defendant did not execute the sale deed in spite of the requests made by the Plaintiff. The Plaintiff, it is admitted position, was ready and willing to perform her part of the agreement. In fact, the entire sale consideration had been received by the Defendant. Only thing remained to be done was the execution of the sale deed in terms of the agreement.

(3.) Plaintiff brought a suit for specific performance of the agreement with directions to the Defendant to execute the sale deed in respect of the land subject matter of dispute along with kutcha house in favour of the Plaintiff. The suit was resisted by the Defendant. Defendant preferred a counter claim. According to the Defendant, the entire area of khasra number 337 was 1200 sq. yards and the Defendant had agreed to sell to the Plaintiff only 100 sq. yards, which consisted of a temporary, shed measuring 50 sq. yards with vacant land around house measuring Anr. 50 sq. yards. It was not disputed that the entire consideration amount was received by the Defendant. The defence of the Defendant was that the agreement was not enforceable as the same was void being in derogation to the provisions ^ of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act and Section 16 (C) of the Himachal Pradesh Town and Country Planning Act, 1977. "Act for short". It was also pleaded that the agreement violated the provisions of the Interim Development Plan, which prohibits the subdivision of the land to an area less than 100 square meters in the urban area of Shimla. It was the further case of the Defendant that the Defendant is claiming 150 sq. yards of land, whereas the Defendant had agreed to sell only 100 sq. yards of the land and this dispute between the parties led to the postponement of the execution of the sale deed. Subsequently, it was discovered that the agreement, being in violation of the statutory provisions, was void and could not have been executed.