SHIV SARAN DASS Vs. RAJINDERA DEVI & OTHERS

JUDGEMENT

(1.) This appeal has been filed by the appellant-plaintiff against the judgment and decree dated 17.08.2005, passed by the learned District Judge, Shimla, District Shimla, H.P., affirming the judgment and decree dated 06.10.2003, passed by learned Sub Judge, Court No.5, Shimla, whereby the suit filed by the appellant-plaintiff has been dismissed.

(2.) Briefly stated facts, as emerged from the record, are that the appellant-plaintiff (hereinafter referred to as the 'plaintiff), filed a suit for specific performance of contract and in the alternative for declaration to the effect that the plaintiff has become owner by way of adverse possession. It is averred in the plaint that Shri Raj Kumar Rajinder Singh, predecessor-ininterest of the defendants, was the owner of the suit property comprised in 'Padam Castle Compound', as detailed in the judgment and decree of the learned trial Court. It is further averred by the plaintiff that he was inducted as a tenant by said Shri Raj Kumar Rajinder Singh in respect of residential premises in 'Padam Castle Compound' in the year 1966. It is the claim of the plaintiff that on 18.12.1973, Shri Raj Kumar Rajinder Singh agreed to sell the suit property to the plaintiff for Rs.45,000/-, for which plaintiff had paid a part sale consideration of Rs.10,000/- to Shri Raj Kumar Rajinder Singh. It is the claim of the plaintiff that he was already in possession of the suit property as tenant and his possession was deemed to have been surrendered in part performance of the agreement. It is further averred that balance sale consideration was agreed to be paid by the plaintiff at the time of registration of the sale deed. Subsequently, another agreement, dated 15.01.1975 was executed between them, when a further part of sale consideration was paid by the plaintiff to the vendor-predecessor-in-interest of the defendants (hereinafter referred to as the 'vendor'). Since the suit property was mortgaged by the vendor with the Himachal Pradesh State Cooperative Bank, Shimla, (for short 'Co-operative Bank') sale deed was agreed to be executed after redemption of the mortgage by the vendor Shri Raj Kumar Rajinder Singh. It is averred by the plaintiff that thereafter, he had been requesting the predecessorin-interest of the defendants and then defendants personally as well as through their General Power of Attorney Shri Surat Ram Jhingta, for execution of the sale deed, but they repeatedly informed the plaintiff that the deed shall be executed after redemption of the mortgage. It is claimed by the plaintiff that defendants recently raised a hotel upon the property adjoining to the suit property, causing apprehension in his mind that defendants must have redeemed the property. It is averred that thereafter plaintiff sent a latter, dated 14.9.2001 to the defendants requesting them to execute a sale deed in terms of the agreements, but no response was received from the defendants.

(3.) Defendants, by way of filing written statement, raised preliminary objections on the grounds of limitation, maintainability and estoppel etc. On merits, the defendants admitted that sale agreement was entered into by predecessor-ininterest of the defendants with the plaintiff and in total they had received consideration of Rs.18,000/-, but claimed that possession of the suit property, as tenant, was with the plaintiff, therefore, by no stretch of imagination it can be claimed that the plaintiff has become owner by way of adverse possession. It is averred that the agreement was valid for one year and after expiry of period of one year, defendants were required to pay back a sum of Rs.40,000/- to the plaintiff. It is further averred that construction work of the defendants was in progress for five years. So, limitation to sue, on the basis of agreements, dated 18.12.1973 and 15.01.1975, stands expired and they were not bound by the terms and conditions of the agreements.