VINOD KUMAR Vs. NEGI RAM & ORS

JUDGEMENT

(1.) Plaintiff is in second appeal before this Court. He is aggrieved by the judgment and decree dated 17.9.2003, passed by learned District Judge, Shimla (Camp at Rohru) in Civil Appeal No. 54- R/13 of 2003/2002, whereby the lower appellate Court has allowed the appeal i.e. in favour of respondent No. 1 (hereinafter referred to as defendant No. 2) and quashed the decree of specific performance of the contract which was passed by learned trial Court in favour of the plaintiff. He was also not held entitled to the relief of prohibitory injunction or declaration to the effect that the sale of the suit land by Puran Chand defendant No. 1 in favour of defendant No. 2 was illegal, null and void. The decree for permanent prohibitory injunction sought against the contesting defendants was also declined. However, while holding that agreement to sell Ext. PW-6/A was executed by defendant No. 1 in favour of plaintiff and that a sum of Rs. 13,000/- towards sale consideration was paid at the time of execution of the agreement, decreed the suit for recovery of the said amount in his favour and against defendant No. 1 Puran Chand. The Cross-Objections preferred by the plaintiff were also dismissed.

(2.) The appeal has been admitted on the following substantial questions of law?

(3.) Defendant No. 1. Puran Chand along with defendants No. 7 to 9, was joint owner of the land bearing Khasra Haal 362, Sabik 156 measuring 0-70-39 hects., situated in Chak Jhaknoti, Tehsil Chirgaon, District Shimla, H.P. He later on became exclusive owner thereof consequent upon family settlement having taken place between him and the other co-owners defendants No. 7 to 9. He agreed to sell the suit land for a consideration i.e. Rs. 35,000/- to the plaintiff and executed the agreement Ext. PW-6/A on 11.2.1999. At the time of execution of the agreement, defendant No. 1 received a sum of Rs. 13,000/- from the plaintiff. The remaining amount of Rs. 22,000/- as per the agreement was to be paid to the said defendant at the time of registration of the sale deed. The possession of the disputed land allegedly was delivered by defendant No. 1 to the plaintiff at the time of execution of the agreement to sell. An affidavit was executed by defendant No. 1 on 6.4.1999 before Executive Magistrate Chirgaon, admitting thereby the receipt of a sum of Rs. 30,000/- towards part payment of the sale consideration and the balance i.e. Rs. 5,000/- allegedly was agreed to be paid by the plaintiff to him at the time of execution of the sale deed. However, on 24.4.1999, defendant No. 1 allegedly received a further sum of Rs. 3200/- from the brother of the plaintiff and as such a sum of Rs. 1800/- was left to be paid to the defendant by the plaintiff towards full and final payment of the sale consideration as agreed upon. According to him, he was always ready and willing to perform his part of the agreement i.e. payment of balance consideration of Rs. 1800/- to defendant No. 1, however, it is the latter who failed to execute the sale deed in his favour. To the contrary, the said defendant fraudulently and dishonestly executed sale deed of the land in dispute in favour of Negi Ram, defendant No. 2 for a consideration of Rs. 18,000/- on 18.11.1999. Therefore, declaration to the effect that the sale deed, being the result of fraudulent transaction, not only null and void but also sham transaction, hence was sought to be declared illegal, null and void. Since a sum of Rs. 20,000/- was spent by him for raising an apple orchard over the land in dispute, therefore, the decree for specific performance of the contract was sought to be passed against defendant No. 1 directing him thereby to execute the sale deed in favour of the plaintiff in accordance with the agreement dated 11.2.1999 Ext. PW-6/A and affidavit dated 6.4.1999 Ext. PW-1/A. The sale deed dated 18.11.1999 executed by defendant No. 1 in favour of Negi Ram, defendant No. 2 was also sought to be declared null and void. The defendants No. 2 & 3 were also sought to be restrained from causing any interference with the possession of the plaintiff in the suit land and also to get the mutation thereof attested on the basis of the sale deed in favour of defendant No. 1.