URMILA DEVI Vs. SURINDER NATH

JUDGEMENT

(1.) The defendant is the appellant, who is aggrieved by the judgments and decrees concurrently passed by the learned Courts below, has preferred this Regular Second Appeal by invoking the provisions of Sec. 100 of the Code of Civil Procedure (for short 'Code').

(2.) The brief facts giving rise to the instant appeal are that the respondent/plaintiff (hereinafter referred to as the 'plaintiff'), filed a suit for specific performance of agreement dtd. 15/1/2004 alleging therein that the appellant/defendant (hereinafter referred to as the 'defendant') entered into an agreement with the plaintiff for the sale of 15 Marlas (0/2/87 HM) of land out of Khata No.192, Whether reporters of Local Papers may be allowed to see the Judgment Yes Khatauni No. 421, Khasra No. 1531 measuring 0/86/83 HM situated in Mohal and Mauza Rehan, Tehsil Nurpur, District Kangra, H.P. (hereinafter referred to as the suit land) for a sale consideration of Rs.15,000.00 per Marla, which comes to Rs.75,000.00. An amount of Rs.15,000.00 was paid to the defendant as earnest money and the possession of the suit land was delivered to the plaintiff towards the part performance of this agreement and as such, the plaintiff is in possession of the suit land. The balance sale consideration was agreed to be paid at the time of registration of the sale deed. The sale deed was agreed to be executed after the partition. Since the date of agreement, plaintiff remained ready and willing to perform his part of the agreement, however, the defendant did not inform the plaintiff as to whether the land has been partitioned or not. The plaintiff came to know that the land has finally been partitioned by the A.C. 1st Grade, Nurpur on 13/11/2007 and mutation to this effect has also been attested and sanctioned on 11/1/2008 and as such, the plaintiff approached the defendant to execute the sale deed of the suit land, but the defendant put off the matter on one pretext or the other. The plaintiff was constrained to serve a legal notice on 28/1/2008 upon the defendant to execute the sale deed as per agreement dtd. 15/1/2004 on or before 12/2/2008. Despite legal notice, defendant did not turn up and the plaintiff remained present in the office of Sub Registrar, Nurpur on 12/2/2008 from 10.00 a.m. to 5.00 p.m. alongwith the requisite stamp papers and as a token of his presence, plaintiff got attested an affidavit from the Notary Public, Nurpur to this effect on 12/2/2008. The plaintiff has always . been ready and willing and is still ready and willing to perform his part of agreement, but the defendant has willfully failed to perform her part of agreement, hence the suit.

(3.) The defendant contested the suit by filing written statement in which preliminary objections qua locus standi, maintainability, estoppel etc. were taken. On merits, the defendant admitted that she agreed to sell the suit land to the plaintiff, but the plaintiff failed to comply with the terms and conditions of the agreement and refused to purchase the suit land and to pay the sale consideration to the defendant as she was in need of money due to the marriage of her daughter. The defendant purchased land from her sister Kamlesh Kumari. The defendant admitted to have received earnest money of Rs.15,000.00 from the plaintiff towards the sale consideration and also admitted that the possession of the suit land was also delivered to the plaintiff on the spot. The defendant never refused to execute the sale deed, however, the plaintiff was not willing to purchase the suit land. The sale deed was to be executed within three months from the date of execution of the alleged agreement. The defendant denied the remaining averments and prayed for dismissal of the suit.