JANKI (DELETED SINCE DECEASED) Vs. GURDEV AND ANOTHER

JUDGEMENT

(1.) The appellants are the defendants, who have suffered a decree at the hands of the learned trial Court and the same stands affirmed by the learned first Appellate Court vide judgment and decree dated 6.8.2014, constraining them to file the instant appeal. The parties shall be referred to as the 'plaintiffs' and the 'defendants'.

(2.) Brief facts of the case as enumerated in the plaint are that Smt. Janki, who died during the pendency of the suit, entered into agreements with the plaintiffs for sale of land comprised in Khasra No. 41 (2-1 bighas) and 43 (4-2 bighas), Khata/Khatauni Nos. 5 min/5 min, situated in village Banehra, Pargana Dharampur, Tehsil Nalagarh, District Solan, H.P. (for short 'Suit Land') vide agreements dated 14.6.2007 Ex.P-1 and dated 29.6.2007, Ex.P-2, with the plaintiffs. As per agreement Ex. P-1, she agreed to sell land measuring 4 bighas 2 biswas to the plaintiffs for total sale consideration of Rs.1,64,000.00 as well as vide agreement Ex.P-2, dated 29.6.2007, land measuring 2 bighas 1 biswa was agreed to be sold for sale consideration of Rs.82,000.00. It was averred by the plaintiffs that they paid Rs.1,40,000.00 and Rs.12,000.00 to said Janki at the time of execution of agreements Ex.P-1 and Ex.P-2, respectively. At the time of execution of agreements, Ex.P-1 and Ex.P-2, the remaining sale consideration was agreed to be paid on 20.8.2007 and 30.9.2007, respectively. The plaintiffs paid an amount of Rs.24,000.00 on 20.8.2017 as per Ex.P-1 and with the consent of parties, date of execution of sale deed was extended upto 5.3.2008 and qua this endorsement was made in the presence of witnesses. The plaintiffs paid Rs.60,000.00 as per Ex.P-2 and with consent of the parties, the date of execution of sale was extended upto 5.3.2008 and endorsement qua this was made in the presence of the witnesses on 30.9.2007. The remaining sale consideration of the amount of Rs.10,000.00 was agreed to be paid at the time of execution of sale deed on 5.3.2008. It was specifically pleaded by the plaintiffs that they remained present in the office of Sub Registrar, Nalagarh on 5.3.2008 alongwith remaining sale consideration in order to perform their part of agreement, but said Smt. Janki did not come to perform her part of contract. Thereafter, the plaintiffs personally approached her with the request to perform her part of contract but she tried to linger on the matter on one pretext or the other. The plaintiffs then issued a legal notice to defendant No.1 through counsel on 7.3.2008 and asked her to come to the office of Sub Registrar on 20.3.2008 to perform her part of contract. Notice was duly served upon her but she did not file any reply nor did she come to the office of Sub Registrar to execute the sale deed. The plaintiffs marked their presence by swearing on an affidavit on 20.3.2008 before the Notary Public. It was further averred that the plaintiffs came to know on 29.4.2008 that said Janki, defendant No.1, gifted the land in favour of defendant No.2, who is son of her husband from second wife by executing a false and frivolous transaction, vide gift deed No.1075/2008, dated 23.4.2008, registered with Sub Registrar, Nalagarh. It was averred by the plaintiffs that the said gift deed was executed by defendant No.1 in connivance with defendant No.2 to frustrate the legal rights of the plaintiffs and defendant No.2 was having complete knowledge of the agreements as they were members of one family. It was pleaded that the plaintiffs always remained ready and willing to perform and are still ready to perform their part of contract and sought grant of decree for possession by way of specific performance of the contracts and also sought declaration to the effect that gift deed No.1075, dated 23.4.2008 was wrong and void and in alternative, prayed for recovery of damages to the tune of Rs.3,40,000.00 alongwith interest.

(3.) The suit was contested by the defendants by filing written statement wherein preliminary objections qua maintainability, cause of action, locus standi, valuation and plaintiffs having suppressed the material facts, were raised. On merits, it was admitted that defendant No.1 was owner in possession of the suit land. They denied the execution of agreements dated 14.6.2007 and 29.6.2007. The suit of the plaintiffs was stated to be baseless and liable to be dismissed. They further pleaded that defendant No.1 had no male issue from her husband and her husband contracted second marriage with Smt. Chinto as per customary rights prevailing in the area and her husband gave the suit land to her in lieu of maintenance and to adjust both the wives. Out of the said wedlock, three sons and four daughters were born. Both wives and children were residing in a joint family and she adopted defendant No.2 as her son and they were living together for the last 16 years. She gifted the land to defendant No.2 vide gift deed dated 23.4.2008 out of her free will and without consideration and defendant No.2 became absolute owner in possession of the suit land. It was pleaded that in June, 2007, one Babu Ram resident of Banehra with two other persons came to the house of defendant No.1 in absence of defendant No.2 and said Babu Ram misled her that he would provide her widow pension from the office of SDM, Nalagarh and for this purpose he needed her thumb impression. Thereafter, Babu Ram took her thumb impressions on some papers and later on, the plaintiffs in connivance with said Babu Ram, Gur Piara, Ram Lal, son of Sh. Labha Ram, who were property dealers, converted those papers on which her thumb impressions were taken into false and frivolous agreements. The defendants came to know about false and frivolous agreements when they were summoned by the Court. There was no occasion or necessity to enter into the alleged agreements and the agreements were alleged to be wrong and not binding upon them.