VINAY BODH Vs. DOLEKAR

JUDGEMENT

(1.) THE plaintiff has filed the present suit claiming therein the following reliefs: -

(2.) THE facts as pleaded in the plaint are that the plaintiff is permanent resident of village Bhuntar, Phati and Kothi Khokan Tehsil and District Kullu and is a bonafide Himachali and is an agriculturist within the meaning of H.P. Tenancy and Land Reforms Act, 1972. Defendant No. 1 is resident of village Shuru, Phati Prini, Kothi Jagatsukh, Tehsil Manali District Kullu and was well known to the plaintiff. She wanted to sell her land and house standing thereupon and after negotiations, defendant No. 1 agreed to sell the two houses along with land comprised in Khewat No. 308(old) 505/660 (new), Khasra No. 3201/2665 (old) now Khasra No.686 (new), measuring 0 -07 -23 hectares. An agreement to sell was entered into by the parties on 27.9.2005, on which date the plaintiff paid full sale consideration of Rs.15,00,000/ -. In terms of this agreement time for defendant No. 1 to remove her personal belongings was given and the sale deed was agreed to be executed before or latest by 31st March, 2006. Defendant No.1 encashed the cheque on 1.10.2005, but thereafter when the plaintiff contacted her and requested her to execute the sale deed in his favour and deliver physical possession of the demised premises, as agreed to be sold, defendant No.1 kept evading the matter on one pretext or the other and stated that she would get the sale deed executed well before 31st March, 2006. Even on 31st March, 2006, defendant No. 1 failed to appear in the office of Sub Registrar, though the plaintiff reached there at 10:00 A.M. and remained there till 4.30 P.M. An affidavit evidencing the presence of the plaintiff was got attested on 31.3.2006 before the Executive Magistrate, Manali. The plaintiff thereafter contacted defendant No. 1 who still assured him that she would get the sale deed executed and it was only on account of certain unavoidable circumstances that she was compelled to remain at Chandigarh. When defendant No. 1 despite a passage of time failed to execute the sale deed, the plaintiff got a legal notice dated 31.8.2006 served upon defendant No.1, both on her residential address in Tehsil Manali as also the address at Chandigarh. But these notices were received back undelivered. It is then averred that the plaintiff came to know that defendant No.1 had got executed a sale deed and got the same registered in favour of defendants No. 2 and 3 on 25.11.2005 of the same property in the office of Sub Registrar, Manali for a sale consideration of Rs.20,00,000/ -. This sale deed was stated to be illegal, void and not binding upon the rights of the plaintiff. It is thereafter averred that defendants No. 2 and 3 after realizing that the sale deed executed in their favour by defendant No. 1 was likely to be cancelled being illegal and void, sold the suit land to defendant No. 4 vide sale deed dated 29.9.2006 for a sale consideration of Rs.20,00,000/ -. The plaintiff states that he was ready and willing to perform his part of contract and is still ready and willing to perform his part of contract and even has sufficient funds with him for purchase of stamp papers. It is lastly claimed that the suit is within time, since the cause of action has arisen on 27.9.2005. It is in this background that the present suit has been filed claiming therein the reliefs as mentioned herein above.

(3.) DEFENDANT No.1 resisted the suit of the plaintiff by filing written statement, wherein preliminary objections regarding the form of suit as also the plaintiff being suppressio veri and suggestio falsi were raised. On merits, specific defence of defendant No. 1 is that she had sought a friendly loan from the plaintiff and as per general practice had executed a sale agreement with him. The sale agreement was not to be acted upon and was actually executed towards security for securing the loan amount. It was implied that the suit land would remain in possession and ownership of defendant No. 1 and as and when the loan amount would be retuned, the sale agreement would be destroyed and not acted upon. Defendant No. 1 did not deny the receipt of notice, but averred that since she was unable to pay the plaintiff friendly loan, she was constrained to sell the suit land in favour of defendants No. 2 and 3 for a sale consideration of Rs.20,00,000/ - vide sale deed dated 25.11.2005. Defendants No. 2 and 3 were made fully aware of the fact that the land was being sold, so that defendant No. 1 could repay back the money to the plaintiff. Defendants No. 2 and 3 agreed to purchase the land and undertook to indemnify defendant No. 1 from any claims or litigations, if initiated by the plaintiff with respect to the suit property.