DEEPA DEVI Vs. SHRI MUNNSHI RAM AND OTHERS

JUDGEMENT

(1.) By way of present appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Mandi in Civil Appeal No. 80 of 2005 dated 01.06.2006 vide which, the learned Appellate Court upheld the judgment passed by the Court of learned Civil Judge (Senior Division), Court No. 1, Mandi in Civil Suit No. 69 of 1994 dated 21.12.2004.

(2.) This appeal was admitted on 03.05.2007 on the following substantial question of law:

(3.) Brief facts necessary for the adjudication of the present case are that the plaintiff filed a suit for specific performance of agreement dated 02.05.1986 vide which, defendant No. 1 had agreed to sell 0-0-6 bighas of land to the plaintiff and she further sought declaration to the effect that sale deed executed on 12.01.1994 and registered on 15.01.1994 by defendant No. 1 in favour of defendant No. 2 be declared wrong, null and void. She also prayed for decree of possession of the suit premises against defendant No. 2 as well as for damages. Her case was that defendant No. 1 was owner in possession of land comprised in Khata No. 286/410 min, Khasra No. 1277, measuring 0-2-0 bighas to the extent of ⅕th share, situated in Mauja Rewalsar, Illaqa Bagra, Tehsil Sadar, District Mandi, H.P. Defendant No. 1 agreed to sell 0-0-6 bighas of land out of his share in favour of the plaintiff for consideration of Rs. 5700.00 on 02.05.1986, in lieu of which, the plaintiff paid an amount of Rs. 1000.00 on the same day and a written agreement to this effect was also executed. It was further the case of the plaintiff that possession of the land was also delivered to her by defendant No. 1 and the balance amount was agreed to be paid on 15.05.1986, on which date, the defendant No. 1 had agreed to execute sale deed in her favour. However, the said defendant came to the plaintiff on 12.05.1986 and asked her to make the balance payment and he also executed receipt to this effect on 12.05.1986 and agreed to execute a sale deed within few days. The plaintiff in lieu of having paid the entire amount to defendant No. 1 immediately constructed a double storeyed house on the suit land. Thereafter, plaintiff asked defendant No. 1 to execute a sale deed in her favour, but defendant No. 1 denied the execution of said sale deed. It was further the case of the plaintiff that her husband defendant No. 3 was a habitual drunkard and had sold major part of his property to various persons to satisfy his lust of drinking on very meager rates. Defendant No. 3 was not even maintaining her and their children. She had also filed a petition under Sec. 125 Cr. P.C. against defendant No. 3. Taking advantage of the habit of drinking of defendant No. 3, the defendant No. 2 without the consent permission of the plaintiff and in connivance with defendant No. 3 took possession of the suit premises on 15.01.1993 and from the said date, he was in illegal possession of the suit premises and was not vacating the same. Further case of the plaintiff was that she again asked defendant No. 1 to execute a sale deed in her favour, but he delayed the matter till 05.01.1994, on which date, she came to Mandi in order to get the sale deed executed in her favour. Thereafter, as per the plaintiff, rather than executing the sale deed in her favour, defendant No. 1 executed a sale deed of the suit land with defendant No. 2 dated 12.01.1994 which was registered on 15.01.1994. It was in these circumstances that the suit was filed by the plaintiff.