DHARAMJEET KAUR Vs. JAGIRO

JUDGEMENT

(1.) Plaintiff-Dharamjeet Kaur has instituted the present suit under the provisions of Order 7 Rule 1 read with S.26 CPC for specific performance of contract arrived at between the plaintiff and the defendant on 18.1.2014, whereby, allegedly the defendant agreed and contracted with the plaintiff to sell and transfer the ownership and possession of the land bearing Khewat Khatauni No. 48/70, Khasra No. 316/125 measuring 11-0 Bigha and Khewat Khatauni No. 170 Khasra No. 288/125, measuring 4-16 Bigha total land measuring 5-7 Bigha as entered in Jamabandi for the years 2006-07, situate in Village Mangseri, Pargana Plassi, Tehsil Nalagarh, District Solan, Himachal Pradesh by way of execution of registered sale deed in favour of the plaintiff. In the alternative, plaintiff has also prayed for payment of compensation i.e. double the amount of earnest money and also for permanent perpetual injunction restraining the defendant from alienating, transferring or creating third party interest or changing the nature of the suit land in any manner whatsoever.

(2.) Plaintiff averred in the plaint that the suit land is owned and possessed by the defendant, who with a view to sell the same executed an agreement dated 18.1.2014 at Nalagarh, with the plaintiff for the transfer of the suit land in favour of plaintiff. As per agreement to sell, defendant agreed to sell his land at the rate of Rs.6,50,000/- per Bigha for total consideration of Rs.34,77,500/-. Plaintiff averred that at the time of execution of agreement, plaintiff had paid a sum of Rs.8 Lakh to the defendant, which was duly received by the defendant. At the time of execution of agreement to sell, it was agreed between the parties that the balance amount i.e. Rs.26,77,500/-, would be paid to the defendant at the time final execution and registration of the sale deed. As per agreed terms, sale deed was to be executed and registered by the defendant in favour of the plaintiff on or before 15.5.2014, after receipt of balance amount of Rs.26,77,500/- payable by the plaintiff. Plaintiff and defendant also agreed that in case, defendant refuses to get the sale deed registered in favour of the plaintiff, plaintiff would be entitled to get the sale deed registered in his favour through process of court at the cost of defendant or the plaintiff would be entitled to receive double the amount of earnest money paid to the defendant. Averments contained in the plaint further suggest that it was also agreed inter se parties that in case the plaintiff refuses to make payment of the balance amount of sale consideration or get the sale deed registered, the earnest money of Rs.8.00 Lakh paid by her to the defendant shall stand forfeited. Agreement to sell allegedly came to be executed inter se parties in the presence of the witnesses namely Madan Lal and Vikas Gupta. Defendant put her thumb impression on the agreement to sell and plaintiff put her signatures in token of the acceptance of terms and conditions of the agreement to sell in the presence of above named witnesses. Agreement to sell was duly registered in the Register of Shri J.S. Rana, Notary Public, Nalagarh. Plaintiff has averred that the agreement to sell was duly authenticated by the Notary Public, who read over the contents of the same to the defendant, who in turn put her thumb impression on the same, after fully understanding the contents thereof. Subsequently, plaintiff received a notice dated 3.3.2014, from the defendant through her counsel, alleging that agreement to sell in question was got signed from the defendant by the plaintiff by playing fraud upon her. Such notice was replied by the plaintiff through her counsel specifically denying therein the allegations of fraud. Plaintiff, vide aforesaid reply, also requested the defendant to get the sale deed registered after receiving balance sale consideration in terms of agreement to sell. Plaintiff kept on approaching the defendant again and again for doing the needful, however, she having found the defendant disinclined to get the sale deed registered, got her served with legal notice dated 14.5.2014 intimating therein that she would reach the office of Sub Registrar, Nalagarh at 10.00 AM for the registration of sale deed. Plaintiff reached the office of Sub Registrar, Nalagarh on 15.5.2014 at 10.00 AM and remained there upto 5.00 PM. Plaintiff had allegedly brought the total balance sale consideration for the registration of the sale deed but the fact remains that the defendant did not turn up. With a view to prove her presence in the office of the Sub Registrar, plaintiff got two affidavits attested from the Executive Magistrate one at 10.30 AM and another at 4.30 PM. Plaintiff averred in the plaint that she has been approaching the defendant time and again with the request to get the sale deed executed but to no avail. Plaintiff also made a request to the defendant for doing the needful on 18.5.2014, however, on that day, defendant clearly told the plaintiff that she would transfer the land in favour of third person. Plaintiff served another registered Acknowledgement Due notice on 20.5.2014 through her counsel calling upon the defendant to receive the balance sale consideration and thereafter, execute the sale deed in favour of the plaintiff. Plaintiff specifically informed vide aforesaid notice that in case no reply is received from her, it would be assumed that the defendant is not ready and willing to abide by the terms of the said agreement. Aforesaid registered notice though reached the address of the defendant on 22.5.2014, but the defendant despite her being present at her given address between 20.5.2014 to 22.5.2014, purposely avoided receipt of the notice. Plaintiff again requested the defendant orally to perform her part of the contract on 23.5.2014 and 24.5.2014 but all such requests were rejected and declined by the defendant. Since despite best efforts put in by the plaintiff, defendant failed to get the sale deed registered in terms of the agreement to sell dated 18.1.2014, she filed the instant suit for specific performance of the contract. Plaintiff has averred that the cause of action first arose in her favour on 18.1.2014 when agreement to sell was executed between the plaintiff and the defendant in respect of the suit land and when it was attested and authenticated by the Notary Public on 3.3.2014. Finally, cause of action is said to have accrued in favour of the plaintiff on 20.5.2014, when last notice was served upon the defendant by the plaintiff and said cause of action is said to be still continuing.

(3.) Defendant, by way of written statement, denied the claim of the plaintiff as projected in the plaint, in toto by stating therein that the plaintiff has filed the suit with an oblique motive of harassing the defendant, specially stating therein that the plaintiff has no locus standi to file the suit. Defendant further stated that no cause of action, whatsoever has accrued in favour of the plaintiff and there was no privity of contract between the plaintiff and the defendant. Defendant averred that she had nothing to do with the alleged controversy. Defendant also alleged that the plaintiff is guilty of suppressing true and correct facts and suit has been filed on false and baseless facts, as such, same deserves outright dismissal. Defendant also averred that the agreement to sell dated 18.1.2014 was never entered into inter se plaintiff and the defendant nor the defendant had ever entered into the same and there is no valid and subsisting agreement to sell between the parties. Defendant alleged that the agreement to sell was fraudulent for the reason that no agreement to sell was ever entered into nor any earnest money was ever paid. Defendant alleged that the plaintiff taking undue advantage of the old age of the defendant and her simplicity, played fraud upon her. Defendant alleged that she had never entered into a valid agreement with the plaintiff and alleged agreement to sell being outcome of fraud, deceit and undue influence, does not affect the rights of the defendant. Defendant further averred that she is an old aged and uneducated lady, having no worldly knowledge. Defendant averred in the written statement that the plaintiff got thumb impression of the defendant on certain papers under the pretext of enhancement and receipt of widow pension. Defendant further averred that contents of the document, which was thumb marked by her, were never read over and she was never made to understand the contents thereof and it was only when defendant alongwith her nephew went to the Document Writer, who had scribed the papers at Nalagarh and had obtained thumb impression of the defendant on the Register as well as backside of the documents, it transpired that the alleged agreement to sell qua suit land has been got executed by the plaintiff by playing fraud upon her. Defendant has further averred in the written statement that she having come to know that fraud has been played upon her, served the plaintiff with legal notice that she is not under any obligation to get the sale deed registered in terms of the agreement to sell dated 18.1.2014. Defendant further stated hat she is an uneducated rustic lady and does not know the intricacies of law and she also does not how to sign. She further averred that the suit land is the only land, which is in her ownership and possession and as such there is no question of her entering into agreement to sell because in that eventuality she would become landless and homeless. She further averred in the written statement that there is litigation pending qua the suit land as such, there is no question of her having entered into agreement to sell with the plaintiff, with the aforesaid pleadings, defendant sought dismissal of the suit with exemplary costs.