GIRDHARI LAL Vs. NARU RAM (SINCE DECEASED

JUDGEMENT

(1.) Instant regular second appeal is directed against the judgment and decree dtd. 28/3/2008, passed by the learned Additional District Judge, Fast Track, Kullu, H.P., in CA No. 07/07, affirming the judgment and decree dtd. 29/11/2006, passed by the learned Civil Judge ( Sr. Div.), Kullu, H.P., in CS No. 12 of 2002/RBT No. 52 of 2005, whereby suit for specific performance of contract as well as declaration having been filed by the plaintiff-appellant (herein after referred to as "the plaintiff"), came to be dismissed.

(2.) In nutshell, facts of the case, as emerge from the record are that plaintiff filed a suit for specific performance of the contract as well as for declaration, averring therein that respondent No.1, agreed to sell his half share in the suit land, description whereof is given in the plaint, vide agreement dtd. 23/3/1995, for total consideration of Rs.4,75,000.00 . As per plaintiff, sum of Rs.40,000.00 was paid to defendant No.1 on the same date i.e. 23/3/1995, whereas remaining amount was agreed to be paid at the time of registration of the sale deed, which as per agreed terms was to be executed on or before 23/3/1998. Plaintiff averred that in the month of August, 1996, defendant No.1 asked the plaintiff to pay more money as he was in need of the same and as such, plaintiff made further payment of Rs.40,770.00 against the receipt. As per plaintiff, he again on the request of defendant No.1, paid a sum of Rs.80,000.00 to the defendant on 25/12/1997, against proper receipt. Plaintiff apprised defendant No.1 that he is ready and willing to purchase the suit land by paying balance consideration amount and asked him to remain present in the office of Sub- Registrar on 23/3/1998, so that sale deed is executed in terms of agreement dtd. 23/3/1995 but despite assurance, defendant No.1 failed to turn up. On 8/2/1999, plaintiff served defendant No.1 with the registered notice through his counsel Mr. A.C. Thakur, Advocate, calling upon him to execute the sale deed. Plaintiff again requested the defendants through registered letter dtd. 30/7/1999 and 25/5/2000 for the execution of sale deed, but in vain. Plaintiff further averred in the plaint that on 3/3/1999, plaintiff on the request of son of defendant No.1 Mohan Lal, who had come to his house, paid sum of Rs.2,500.00. On 22/5/1999, plaintiff again paid sum of Rs.1043.00 for ration and Rs.175.00 for the purchase of clothes, but thereafter son of defendant No.1 died, for whose last rites, plaintiff again paid a sum of Rs.16,000.00 to the defendant No.1 on 28/6/1999. Plaintiff further averred in the plaint that there was litigation with one Subhadra and defendant No.1 and as such, defendant No.1 expressed his inability to execute the sale deed in favour of the plaintiff and gave impression to him that Smt. Subhadra had filed an appeal and the litigation is still pending and as such, he could not insist upon defendant No.1 to execute the sale deed. Plaintiff claimed before the court below that during the pendency of the case, he came to know that defendant No.1 had transferred the suit land by making the gift deed in favour of defendants No. 2 and 3 i.e. his grandsons vide gift deed No. 951 dtd. 29/6/2001 and mutation No. 6135 was also entered and attested on 25/7/2001. Plaintiff also set up a case before the court below that he came to know that defendant No.1 had also sold 4 biswas of land out of the suit land to one Shri Chhape Ram (defendant No.4) vide registered sale deed dtd. 12/7/2001, upon which mutation No. 6138 was entered and attested on 27/7/2004, whereafter he got his plaint amended and also challenged the gift deed made by defendant No.1 in favour of his grandsons as well as mutation attested on the basis of said transactions being null and void.

(3.) Defendant No.1 by way of written statement resisted the aforesaid claim on the ground of maintainability, limitation and cause of action. On merits, defendants denied factum with regard to execution of agreement dtd. 23/3/1995. Defendant also denied that in the year, 1996 to 1998, he had received Rs.2,40,777.00 and Rs.80,000.00 from the plaintiff. Defendant No.1 also denied that plaintiff had been paying money to him and his son from time to time and he had issued receipts in that regard. Defendant No.1 also claimed that he rightly gifted the suit land in favour of the grandsons and thereafter, rightly sold the part of the suit land in favour of the defendant No.4. Defendants No. 2 and 3 by way of separate written statement denied the execution of agreement by defendant No.1 in favour of the plaintiff to sell the suit land. Defendants No. 2 and 3 also claimed that valid gift deed was executed in their favour by defendant No.1 and plaintiff had the knowledge with regard to such gift deeds made by defendant No.1 Defendants No.2 and 3 claimed that valid mutation No. 6135 came to be attested in their favour on the basis of valid gift deed executed in their favour by defendant No. 1. Defendant No.4 by way of separate written statement raised the preliminary objections with regard to maintainability, limitation and estoppel and denied that defendant No.1 had agreed to sell the suit land to the plaintiff. Defendant No.4 further stated that he had purchased 4 biswas of suit land, upon which valid and legal mutation No. 6138 was sanctioned and attested in his favour and as such, prayed that plaint having been filed by the plaintiff deserves to be dismissed.