TARA CHAND AND OTHERS Vs. MADAN LAL

JUDGEMENT

(1.) Instant Regular Second Appeal under Section 100 of the Civil Procedure Code has been filed against judgment and decree dated 28.1.2005, passed by the learned Additional District Judge, Fast Track Court, Una in Civil Appeal No. 220/2K RBT No. 194/94/00, affirming judgment and decree dated 9.11.2000 passed in Civil Suit No. 224/1994 by Sub Judge(II), Una, whereby suit filed by respondent-plaintiff (hereafter, 'plaintiff') for possession by specific performance of agreement came to be decreed.

(2.) Briefly stated facts as emerge from record are that the plaintiff filed a suit for specific performance of agreements dated 31.5.1993 and 31.4.1994, seeking therein direction to the appellants-defendants (hereafter, 'defendants'), to execute and get the sale deed registered, of land measuring 0-00-73 hectares comprised in Khewat No. 169 min, Khatauni No. 246 min, bearing Khasra Nos. 881/2 (0-00-20), 882/2 (0-00-20) and 885/1 (0-00-33), as per Aks Tatima attached with the plaint, entered in Bandobast for the year 1987-88, situate in Village Jhalera, Tehsil and District Una, Himachal Pradesh on receipt of remaining sale consideration of Rs.14,000/-. Apart from aforesaid prayer, plaintiff, in the alternative, also prayed for recovery of Rs.44,000/-. Plaintiff averred in the plaint that on 31.5.1993, original defendant namely Atra entered into an agreement with him for the sale of land as detailed herein above (hereafter, 'suit land') for total consideration of Rs.44,000/-. As per the plaintiff, parties executed agreement to sell on 31.5.1993 and on the same day a sum of Rs.30,000/- was paid to the defendant by the plaintiff as part payment qua sale consideration. Plaintiff further claimed that steps for sale by way of Tatima and permission from Town and Country Planning, Una were to be taken by the defendant. However, defendant expressed his inability to execute and get the sale deed registered on 30.4.1994, since he failed to get necessary permission from the Town and Country Planning Department, accordingly, on 30.4.1994, defendant extended date of performance of agreement till 31.8.1994 and the same was reduced into writing on the back of the agreement, whereby defendant agreed to execute registered sale deed in favour of the plaintiff on or before 31.8.1994. Plaintiff further alleged that he was ready and willing to perform his part of agreement to execute sale deed for consideration of Rs.14,000/- and in this regard, he requested defendant time and again to perform his part of agreement and also got issued a legal notice dated 9.1994, requesting him to execute sale deed in his favour. But since defendant failed to do the needful, he was compelled to file the suit seeking direction to the defendant to get sale deed registered in terms of agreements dated 31.5.1993 and 30.4.1994.

(3.) Defendant, by way of written statement admitted execution of agreement dated 31.5.1993 as well as receipt of amount of Rs.30,000/- as part payment of sale consideration. However, defendant stated that he had agreed to execute sale deed on 30.4.1994, after receipt of remaining amount of Rs. 14,000/-, however defendant alleged that though he was always ready and willing to execute the sale deed in terms of agreement but denied that he could not complete codal formalities as required under agreement and further denied that date of execution of sale deed was extended till 31.8.1994 at his instance, rather, he alleged that time was extended at the instance of plaintiff as he had no money to pay balance sale price. However, the written statement suggests that defendant admitted the writing as contained on the backside of the agreement. Defendant further alleged that codal formality of obtaining permission from Department was to be completed by the plaintiff and since he failed to complete the codal formalities, sale deed could not be executed within stipulated time. Defendant also admitted factum of receipt of notice allegedly got issued by the plaintiff and claimed that he was ready and willing to get sale deed registered in his favour and as such both the parties approached court of Sub Registrar, Una, wherein plaintiff showed his reluctance for the execution of sale deed. Defendant further claimed that Sub Registrar refused to extend the date further. At the instance of plaintiff, Sub Registrar gave time till 17.9.1994 for making balance payment and to get the sale deed executed but on 17.9.1994, plaintiff never turned up in the office of Sub Registrar for the aforesaid purpose. In the aforesaid background, defendant prayed for dismissal of the suit of the plaintiff. Plaintiff, by way of replication, reasserted his claim as set up in the plaint and denied the contents of written statement, contrary to the plaint.