SHANKAR Vs. MAGHU

JUDGEMENT

(1.) THIS appeal is directed against judgment and decree dated 19.10.2001 passed in Civil Appeal No. 97 of 1996 by learned Additional District Judge, Mandi whereby he accepted the appeal of the plaintiff/respondent against judgment and decree dated 31.10.1996 passed by learned Sub Judge 1st Class, Court No. 1, Mandi in Civil Suit No. 171/1993. Briefly stated, the case of the plaintiff/respondent is that the defendants/appellants had agreed to sell the land comprised in Khewat No. 105, Khatauni No. 143 min, Khasra No. 555 measuring 0 -5 -12 bighas situated at Village Tawan, H.B. No. 231, Illaqua Balh, Tehsil Sadar, District Mandi (hereinafter referred to as the suit land) to the plaintiff. The defendant through an agreement dated 11.8.1992 duly executed by him had delivered the possession of the land to the plaintiff in presence of the witnesses after having sold the said land for a consideration of Rs. 17,000/ - which was duly received by him. Not only this, the parties had entered into an agreement to sell and the sale deed could not be executed because the defendant was yet to liquidate the bank loan raised against the suit land whereafter he was to get the suit land redeemed on or before 30.7.1993 and was required to execute the sale deed. Despite the said redemption, the defendant had not got the sale deed registered while the plaintiff on his part was still ready and willing to perform his part of the agreement. The legal notice dated 28.7.1993 was issued to the defendant for getting the sale deed registered on 30.7.1993. Despite this, the defendant did not perform his part of the agreement and had not got the sale deed registered in favour of the plaintiff.

(2.) THE original defendant Mania died before filing the written statement and the written statement thereafter was filed by his son and legal representative Shankar. Preliminary objections qua maintainability, enforceable cause of action were raised. On merits, it was pleaded by the defendants/appellants that late Mania had not executed an agreement in question nor had agreed or received the alleged sale consideration of Rs. 17,000/ - from the plaintiff. As a matter of fact, no such agreement had been executed between the plaintiff and late Mania and the agreement relied upon by the plaintiff was a forged one. The suit land was worth more than Rs. 20,000/ - per biswa and, therefore, there was no question of the land having sold for meager consideration of Rs. 17,000/ -. The handing over of physical possession was also denied and the defendants claimed themselves to be in possession of the suit land. The defendants also denied that deceased Mania had agreed to liquidate the bank loan and after redeeming the same, had undertaken to execute the sale deed in favour of the plaintiff. It was denied that Mania had agreed that in default of execution of the sale deed, he would pay double of the amount of sale consideration to the plaintiff as damages. The defendants also denied having received the alleged notice. In the alternative, it was pleaded that in case there was any such notice, then the same was false and bogus. Accordingly, the defendants prayed for dismissal of the suit.

(3.) WHETHER the plaintiff is ready and willing to perform his part of agreement as alleged? OPP