SURENDER DEVI Vs. RAM LUBHAYA

JUDGEMENT

(1.) THE appellant was defendant in Civil Suit No. 33/1 of 1993 which was decreed by the learned Sub Judge 1st Class, Nalagarh on 1.12.1995 for Rs.1,10,000/ - along with interest at the rate of 14% per annum from 5.8.1991 till realization. In Civil Appeal No. 8 -NL/13 of 1996 the learned District Judge, Solan, Camp at Nalagarh on 19.5.1998 affirmed the judgment, decree dated 1.12.1995 of trial Court, hence the defendant has filed the second appeal.

(2.) THE further case is that respondent had filed a suit for specific performance of agreement dated 5.8.1991 on the allegations that the appellant had agreed to sell property more specifically detailed in agreement Ex.PW -1/A in favour of respondent for a total sale consideration of Rs.1,20,000/ -. Out of the sale consideration Rs.1,10,000/ - was paid to appellant through cheque on 5.8.1991. The sale deed was to be executed on or before 1.5.1992 and the balance sale consideration of Rs.10,000/ - was to be paid by respondent to appellant at the time of execution of the sale deed. The time for execution of the sale deed was extended upto 1.7.1992. It was agreed that if the appellant failed to execute the sale deed, she shall be liable to pay damages equal to the amount of Rs.1,10,000/ -. The appellant did not execute the sale deed and, therefore, suit was filed for specific performance of agreement.

(3.) HEARD and perused the record. Mr. Romesh Verma, Advocate, learned counsel for the appellant has submitted that the appellant does not know Punjabi language in which Ex.PW -1/A was written. She was told that the document is a mortgage deed, she never agreed to sell the suit property. The document Ex.PW -1/A is the outcome of fraud played upon the appellant. No amount was paid to the appellant under agreement Ex.PW -1/A. The document Ex.PW -1/A is against public policy inasmuch as, it is in violation of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 (for short ˜Act) which prohibits the sale of property to a non -agriculturist in Himachal Pradesh. The respondent is a non -agriculturist in Himachal Pradesh. Ex.PW -1/A is uncertain for want of permission under Section 118 of the Act for purchasing the suit property and, therefore, this strikes at the root of the case even if, it is held that in fact an agreement Ex.PW -1/A was executed between the parties. The respondent has not proved readiness and willingness on his part to perform the agreement. The learned counsel for the respondent has supported the impugned judgment, decree and has submitted that the learned Court below has passed the decree which is nothing but refund of the amount paid by respondent to appellant along with interest.