BENU DHAR BHANJA Vs. DYALO

JUDGEMENT

(1.) This Regular Second Appeal filed under Sec. 100 of the Code of Civil Procedure is directed against the judgment and decree dated 29.06.2006, passed by learned District Judge, Solan, District Solan, in Civil Appeal No.9-NL/13 of 2005/03, affirming the judgment and decree dated 29.10.2002, passed by learned Sub Judge, Nalagarh, District Solan, whereby suit of the plaintiff was partly decreed.

(2.) Briefly stated facts, as emerged from the record, are that the appellant-plaintiff (hereinafter referred to as the 'plaintiff') filed a suit for specific performance of contract dated 29.1988, directing respondents-defendants No.1 to 6 (hereinafter referred to as defendants No.1 to 6) to execute sale deed of land measuring 1 bigha and in the alternative ?rd share i.e. 7 biswas of the suit land, description whereof has been given in the head note of the plaint (hereinafter referred to as the 'suit land'). It is averred by the plaintiff that on 29.1988 Partap Singh, predecessor-in-interest of defendants No.1 to 6, entered into an agreement for sale of 1 Bigha of land for a sum of Rs. 40,000.00 with the plaintiff and defendants No.7 and 8 and handed over the possession to them on the same day on receipt of full sale consideration. It is averred by the plaintiff that plaintiff and defendants No.7 and 8 effected the partition amongst themselves and subsequently plaintiff raised the construction over his share measuring 7 biswas with the consent of Partap Singh and defendants No.7 and 8. It is the claim of the plaintiff that the said Partap Singh conspired with defendants No.8 and wife of defendant No.7. It is further averred in the plaint that the plaintiff, on coming to know about it, approached Partap Singh for execution of the sale deed, but, Partap Singh, delayed the execution of the sale deed till his death. It is also averred by the plaintiff that Partap Singh, during his life time and after his death his legal representatives, is/are bound to obtain the requisite permission of the State Government of Himachal Pradesh and to execute the sale deed in favour of the plaintiff, pursuant to the agreement dated 29.1988. In this background, the plaintiff filed a suit for specific performance of contract and for prohibitory and mandatory injunction and in the alternative for possession against the defendants.

(3.) Defendants No.1 to 6, by way of filing written statement, refuted the claim of the plaintiff on the ground of maintainability, locus standi, cause of action and estoppel. It is alleged by the defendants that the suit is not maintainable under the provisions of Sec. 118 of the H.P. Tenancy and Land Reforms Act and Rules framed thereunder as well as the same is also hit by the provisions of Sec. 23 of the Indian Contract Act and barred by limitation. On merits, it is alleged by the defendants that the plaintiff is not Himachali bonafide and is non-agriculturist in the State of Himachal Pradesh, therefore, the agreement is hit by Sec. 118 of the H.P. Tenancy and Land Reforms Act and that the same stood frustrated on account of want of permission of the State Government. It is specifically denied that the possession was delivered to the plaintiff or that the plaintiff had raised any construction. It is averred by the defendants that the agreement is indivisible as the same has been rescinded by other co-owners i.e. defendants No.7 and 8, therefore, the same has become unenforceable. In the aforesaid background, the defendants sought dismissal of the suit filed by the plaintiff.