Chuni Lal and Others vs Shiv Prasad and Others

Nisha Gupta, J—This first appeal under Sec. 96 CPC has been filed against the judgment and decree dt. 6.9.95 passed by Additional District Judge No. 1, Bharatpur in Civil Case No. 12/95 (27/88) whereby the suit of the plaintiff -appellants for declaration, injunction and specific performance of the contract has been dismissed. The short facts of the case leading to this appeal are that plaintiff appellant instituted a suit for specific performance of the contract and permanent injunction stating therein that the defendant respondents have entered into an agreement dt. 5.7.86 with the plaintiff appellants to sell the disputed property on consideration of Rs. 8,000/- and has received Rs. 2,000/- as advance amount and promised to execute the sale deed after a month. Thereafter, the respondents have increased the amount. The plaintiff appellants also agreed to purchase the disputed property at the cost of Rs. 38,000/- and on 29.6.87, the sale deed was prepared. Non judicial stamps were purchased. The defendants have received Rs. 20,000/- as advance amount against the price of the property calculated at Rs. 38,000/- but defendants did not execute the sale deed. On 20.10.87, the sale deed was produced before the Sub-Registrar, Bharatpur for registration. The defendants obtained temporary injunction and the document could not be registered. On 11.3.88, the respondents refused to execute the sale deed and property has been sold to other respondents. On the pleadings of the parties, the following issues have been framed:--

The plaintiff appellants examined PW/1 Harinarain, PW/2 Bhagvat Prasad, PW/3 Mooli, PW/4 Nihalsingh and PW/5 Omprakash Garg in support of their case and exhibited Ex. 1 to Ex. 11 whereas defendants examined DW/1 Phool Singh, DW/2 Khubhiram, DW/3 Ratansingh, DW/4 Shiv Prasad and DW/5 Vijaypalsingh in rebuttal. The appellants have also examined Chunilal as PW/6 to further support their case. After hearing the contention of both the parties, the suit has been dismissed, hence this appeal.

The contention of the appellants is that they have also lodged a criminal case against the respondents in which they have been convicted and sentenced for the offence under Sec. 420 IPC and appeal has also been dismissed. The appellants are in possession of the property. The Court below has erred in disbelieving the fact of payment of Rs. 22,000/- and has not relied on the sale deed Ex. 2. The admitted case between the parties is that agreement has been arrived between the parties. The defendant respondents have declined to sell the property hence suit be decreed.

Per contra, the contention of the respondents is that there is no infirmity in the judgment and decree under appeal passed by the trial Court.

Heard the learned counsel for the parties and perused judgment and decree under appeal as well as the original record of the case.

In memo of appeal much has been said about the evidence and supported documents but the Court below has decided issue No. 1 in favour of appellants as well as on issue No. 2, document has been found to be executed but the Court below was of the opinion that it has not been proved that money has been paid in lieu of agreement dt. 29.6.87 hence these findings are in favour of the appellants.

The Court below has dismissed the suit mainly on the ground that appellants themselves were not ready and willing to perform the part of their contract. Shiv Prasad, DW/4 has stated that in spite of notice, the plaintiffs have not come to execute the sale deed. Ex. A/2 is the notice which has been served on the appellants and in reply to Ex. A/2, Ex. 11, reply has been furnished which clearly speaks that the appellants were not ready and willing to execute the sale deed and they have shown their inability to be present at Registrar Office on 6.1.88. It has also been contended in Ex. 11 that on 20.10.87, the sale deed was presented before the Sub-Registrar on that day, sale deed could not be registered as the Registrar has refused to register it and contention of the appellants was that they wanted to file an appeal against the said order and they have refused to appear before the Registrar hence when the appellants themselves were not ready and willing to execute the sale deed, they cannot now claim the specific performance of the contract. One other fact is pertinent to note that to respondent No. 5 to 8, property has been sold on the sale consideration of Rs. 30,000/- whereas admitted case of the appellants is that they have agreed to purchase the property on 38,000/- and date fixed for registration was 11.3.88. The property has been sold to respondents on 11.3.88 at 30,000/- and sale deed is Ex. 9 admitted document of the appellants, hence in view of the above, the trial Court has rightly decided issue No. 5 against the appellants and this is the issue which goes to the root of the case hence in view of the fact that respondents No. 5 to 8 are the bona fide purchasers after refusal to remain present at the Registrar Office Bharatpur by appellants, the sale deed has been executed in their favour, the appellants themselves are guilty of laches. They have not appeared before the Registrar Bharatpur, hence no infirmity could be found in the findings and reasoning of the Court below. The learned trial Court has considered the rival contentions and oral and documentary evidence adduced, hence in view of the above, there is no force in this appeal and the same is liable to be dismissed.

Consequently, the appeal fails and is dismissed.