AMAN KAPUR & ANOTHER Vs. SANJAY KUMAR KAPAHI

JUDGEMENT

(1.) Instant Regular Second Appeal filed under Sec. 100 of the Code of Civil Procedure, is directed against the judgment and decree dated 2.1.2018, passed by learned Additional District Judge (I), Kangra at Dharamshala, District Kangra, H.P., in Civil Appeal No.20-D/XIII/09, affirming the judgment and decree dated 9.1.2009, passed by learned Civil Judge (Junior Division), Court No.2, Dharamshala, District Kangra, H.P, in civil Suit No.24/2000/97, whereby suit for Specific Performance of Agreement to Sell having been filed by the respondent (hereinafter referred to as the 'plaintiff') was decreed.

(2.) Facts, as emerge from the record are that plaintiff filed a suit for specific performance of agreement to sell dated 6.8.1978, which was further revised vide agreement dated 12.3.1994 against the appellants (hereinafter referred to as the 'defendants'), averring therein that on 6.8.1978, the parties to the lis entered into an agreement to sell 2 kanals of land, comprised in Khata No.14, Khatauni No.23, Khasra No.1034/668 situate in Tika Dharamshala, District Kangra, H.P, for a consideration of Rs.12000.00. Plaintiff averred in the plaint that at the time of agreement, tatima of Khasra No.688/2 was prepared and defendants as per agreement handed over the possession of the land proposed to be sold by him on receipt of entire consideration amount and he after taking possession of the suit land, constructed a shed thereon, raised retaining wall, levelled a part of the same, fenced the same and put a gate for egress and ingress. Plaintiff further averred that at the time of agreement, defendants had disclosed that the suit land has not been mutated in his name, as such, it was agreed that the sale deed would be executed after the mutation. But, fact remains that defendants on one pretext or other did not execute the sale deed. In the year, 1994, plaintiff came to know that defendant had sold some portion of the suit land to some other person, plaintiff approached the defendant to execute the sale deed in terms of agreement dated 6.8.1978, but he demanded more money for the execution of the sale deed on the ground that market value of the suit has increased. Accordingly, plaintiff with a view to maintain cordial relations and to avoid litigation agreed to pay Rs.25,000.00 over and above Rs.12,000.00 already paid by him at the time of execution of agreement to sell and as such, plaintiff in total paid sum of Rs.37,000.00 towards sale consideration. At the time of making payment of Rs.37,000.00, fresh agreement dated 12.3.1994 came to be entered into the parties to the lis, whereafter defendant agreed to execute the sale deed within a month and on the expiry of said period, both the parties came to the Office of Sub Registrar on 11.4.1994 and purchased stamp papers worth Rs.4440.00 for the execution of the sale deed. On the next day, the parties went to deed writer and prepared rough draft of the sale deed and also prepared a tatima of the suit land, but defendant allegedly at the time of execution of sale deed, slipped away and feigned sickness. The plaintiff in the suit averred that he always remained ready and willing to perform his part of the agreement, but defendant on one pretext or other kept on postponing the execution of the sale deed on health ground. Plaintiff claimed that the defendant is bound to execute the sale deed in terms of agreement dated 6.8.1978, which was revised vide agreement dated 12.3.1994.

(3.) Defendant by way of written statement contested the suit and claimed that possession of the suit land was never delivered to the plaintiff and the agreement dated 6.8.1978 is illegal, null and void. Defendant further claimed that Khasra No.688/2 does not exist in the revenue record and the parties knew that there is mistake qua location, identity and khasra numbers and as such, plaintiff through his father expressed his unwillingness to purchase the land and accordingly, money received by the defendant was partly adjusted and partly returned to the defendant. Defendant further claimed that Tatima is an outcome of fraud. The plaintiff refused to purchase the suit land and thereafter in order to adjust Rs.12,000.00,he purchased television set in the year, 1978, amplifier, radio, two-in-one etc. and when the plaintiff disputed, the defendant made payment of Rs.5000.00 on 27.6.1993 through a cheque in order to end the dispute forever. Defendant further claimed in the written statement that he sold some portion of his holding out of khasra No. 1034/688 to Vijay Kumar, Atul Chand Guleria, S.S. Sodhi and one more person to which plaintiff never objected and as such, orientation of Khasra No.688 has totally been changed and parties considered the agreement to be null and void. Defendant further alleged that a temporary shed was forcibly raised by the plaintiff on the spot on 12.3.1994 with the help of 13-14 persons and on the same day, the plaintiff alongwith 5-6 persons came to the house of the defendant and lifted the defendant and his son and took them to the house of the deed writer, where they were forcibly made to sign the agreement dated 12.3.1994 under coercion and as such, agreement dated 12.3.1994 is null and void. Defendant further averred that land mentioned in both the agreements does not correspond to each other and he at no point of time accompanied the plaintiff to Tehsil complex on 12.4.1994 for the execution of the sale deed and as such, he is not bound to execute the sale deed.