PARAS RAM Vs. JASMATI AND OTHERS

JUDGEMENT

(1.) The instant Regular Second Appeal stands directed against the impugned judgement and decree recorded by the learned Presiding Officer, Fast Track Court, Mandi, District Mandi in Civil Appeal Nos.38/2004, 167 of 2005 whereby he in affirmation to the verdict recorded by the learned trial Court partly decreed the suit of the plaintiff qua damages to the tune of Rs.50,000/- wherein he had sought a decree for the specific performance of agreement to sell of 18.12.1991. The plaintiff/appellant herein stands aggrieved by the concurrently recorded renditions of both the learned Courts below wherefrom he has instituted the instant appeal herebefore.

(2.) The brief facts leading to the lis inter se the parties were that the defendant No.1 agreed to sell ½ share of the land comprised in Khasra No.1060 and 1072, khata and khatouni No.37/48, measuring 7-10-16 bighas, situated in village Bhiarta, I 11, Rajgarh Balh, Tehsil Sadar, District Mandi, H.P. to the plaintiff through an agreement to sell on 18.12.1991 for a consideration of Rs.20,000/- in presence of independent witnesses. It is averred that on the day of execution of the aforesaid agreement to sell, defendant No.1 received a sum of Rs.19,000/- as an earnest money from the plaintiff in presence of the witnesses and duly acknowledged the receipt thereof. The balance amount of consideration was to be paid by the plaintiff to the defendant at the time of execution and registrtion of the sale deed. It is claimed that the plaintiff is in possession of the suit land for the last 20 years. The defendants have admitted the possession of the plaintiff over the suit land in the said agreement to sell and it has been written in the agreement to sell that whenever the plaintiff will ask the defendant No.1 for execution and registration of the sale deed, then the defendant No.1 will get the sle deed executed and registered. It is claimed that in the month of August, 1992, the plaintiff told defendant No.1 that he is going to Foreign country, Saudi Arabia and after returning from that country, the sale deed qua the suit land will be executed and registered to which defendant No.1 agreed. It is further averred by the plaintiff that when the plaintiff returned from the aforesaid country in the month of May, 1995, he requested defendant No.1 to perform his part of the agreement to sell and get the sale deed executed and registered in his favour but defendant No.1 avoided to do so. Thereafter when the plaintiff pressed defendant No.1 to do the needful, then it was disclosed to him that defendant No.1 has sold the aforesaid suit land to defendant No.2 though a sale deed registered and executed on 9.7.1993 which sale is illegal and void. It is also claimed that the plaintiff was always ready to perform his part of agreement to sell and was ready to bear entire expense of registration of the said sale deed. It is further averred by the plaintiff that on the basis of the aforesaid sale deed, the defendants are interfering with the possession of the plaintiff over the suit land since 10.01.1996 and are bent upon to alienate the suit land. The defendants are also trying to change the nature of the same. The plaintiff asked the defendants to admit his claim and get the aforesaid sale deed canceled but the defendants refused to do so. Hence, the present suit has been filed. It is prayed that a decree for specific performance of agreement dated 11.12.1991 be passed in favour of the plaintiff and against the defendants and a decree for permanent prohibitory injunction in favour of the plaintiff and against the defendant and other persons for restraining them from causing any interference with the suit land has also been sought.

(3.) Defendants No.1 and 2 contested the suit and filed joint written statement, wherein they have taken preliminary objections inter alia limitation, maintainability, and cause of action. It is claimed by the defendants that the defendant No.1 had not entered into the alleged agreement to sell of ½ share out of the suit land on 18.12.1991. The said agreement is forged, fake and void ab initio and not enforceable in the eyes of law. It is further claimed that defendants did not receive Rs.19000/- as an earnest money from the plaintiff for consideration of the agreement to sell. It is further claimed that the plaintiff is not in possession of the suit land rather the suit land is in possession of the defendants. It is further claimed that the plaintiff was fully aware of the transaction of the suit land entered into inter se defendants No.1 and 2, which sale is perfectly legal, valid and defendant No.2 is owner in possession of the suit land. It is denied by the defendants that they are interfering over the suit land.