SHYAMSUNDAR TAK Vs. NEERAJ CHANDAK

JUDGEMENT

(1.) The present second appeal has been preferred against the judgment and decree dtd. 4/3/2022 passed by the Additional District Judge No. 7, Jodhpur Metro in Civil Appeal Decree No. 04/2022 (NCV No. 06/2022) vide which the judgment and decree dtd. 31/1/2022 passed by the Additional Civil Judge No. 2, Jodhpur Metro in Civil Original Suit No. 17/2022 (NCV No. 36/2022) has been reversed. The learned trial Court, vide judgment and decree dtd. 31/1/2022, proceeded on to allow the application under Order 7, Rule 11 of the Code of Civil Procedure as preferred by defendant no. 1-appellant and consequently, dismissed the suit as preferred by plaintiff-respondent No. 1 for specific performance and permanent injunction. However, the first appellate Court proceeded on to reverse the said order and rejected the application under Order 7, Rule 11, CPC as preferred by the defendant.

(2.) The plaintiff preferred the suit for specific performance of contract and permanent injunction with the following averments: Defendant No. 1 had entered into an agreement with plaintiff's grandmother - Triveni Devi for sale of plot no. 113-118 admeasuring 1230.66 sq. yards situated at Khasra no. 447/306, Maruti Nagar, Kudi Bhagtasani, Jodhpur for a sale consideration of Rs.1,17,000.00. On 5/5/1997, defendant No. 1 received the total consideration amount and an agreement to sell was executed in the favour of plaintiff's grandmother. Thereafter, the said plots were acquired by defendant No. 2 - Jodhpur Development Authority (hereinafter referred to as 'JDA' for short) and on 26/10/2004, the Land Acquisition Officer passed an award no. 243/2015 in favour of defendant No. 1. In lieu of the earlier plots, defendant No. 2 allotted four equivalent plots nos. A-133, A- 52, A-571 and A-528 under Vivek Vihar Scheme. Plaintiff's grandmother - Triveni Devi before her demise on 17/9/2014, had executed a Will in favour of plaintiff on 15/6/2011 regarding the plots allotted in lieu of plot nos.113-118.

(3.) On 5/11/2019, defendant No. 2 issued allotment letter in the favour of defendant no. 1 regarding plot Nos. A-52, A-571 and A-528 however, allotment letter regarding plot no. A-133 could not be issued as it was in possession of some other person. On 16/1/2020, defendant No. 1 executed three sale deeds in the favour of plaintiff regarding plot nos. A-52, A-571 and A-528. On 11/1/2022, defendant No. 2 passed an order for allotment of plot no. A-158 in the favour of plaintiff in lieu of plot no. A-133. When the sale deed of the same was not executed by defendant No. 1 in favour of plaintiff, the present suit for specific performance of agreement was filed.