Decided on September 10,1986

CHAMAN LAL Appellant
Khan Ab Ghani Respondents


PER BHAT J. - (1.) THESE two appeal, arise out of one judgment which was passed by a learned single Judge of this court in Civil suit Nos. 49/74 and 27/75. We propose to decide both the appeals by one judgment.
(2.) THE appellants, herein, have filed a suit for specific performance of a contract for sale dated 16 -9 -1972. It is averred in the plaint that the respondent herein had approached the appellants with a proposal to sell his three storeyed house situated at Karan Nagar for an amount of Rs. 75.000/ - and appellant No. 2 after considering the proposal authorised the appellant No. 1, who is his brother, to give acceptance to the agreement of sale and to execute the agreement. The said house was to be purchased by the appellants an equal share in lieu of an amount of Rs. 75000/ - and sale deed was to be executed within two years from the date of execution of the agreement. Respondent is said to have received Rs. 50,000/ - at the time of execution of the agreement. Balance of Rs. 25,000/ - was agreed to be paid at the time of execution of the sale deed. The appellants had to pay the consideration as also the balance in equal shares. The agreement of sale is registered and contents thereof are said to have been accepted by the respondent before the District Regist, Srinagar. Appellants have approached the respondent for execution of the sale deed, but the respondent evaded the execution of sale deed. Thereafter the appellants are said to have issued a notice to the respondent through their Advocate asking him to execute a sale deed in pursuance of the agreement of sale, otherwise appellants would take recourse to litigation. Appellants are said to have shown their willingness and readiness to execute the sale deed and to pay the balance amount of Rs. 25000/ - on the respondent failure to do the needful, a suit for specific performance was brought.
(3.) RESPONDENT in his written statement has denied the execution of the agreement. It is stated by him that he was not holding any three storeyed house on 16 -9 -1972 in Karan Nagar, therefore he could not have fixed its value at Rs. 75,000/ -. The agreement is said to be void. On the other hand it is stated that respondent borrowed Rs. 5,000/ - from the plaintiff and he was asked to put his thumb impression on a non -judicial paper of small denomination. The respondent is illiterate. He put his thumb impression on a blank paper. Contents of any document were not known to him. Fixation of the sale price of the house as also the receipt of advance money of Rs. 50,000/ - is also denied. In his further plea respondent has stated that the sale agreement was void because the same was not accepted by all the parties as required under section 54 of the Transfer of Property Act. The document is said to be outcome of fraud. The suit was bad and was liable to be stayed in view of the pendency of another suit filed by the respondent. It is stated that respondent was made to execute an agreement for sale on 28.7.1972 in respect of the same property by the appellate for a value of Rs.20,000/ - only which also was outcome of fraud. Issues were framed on 4.11.1975. which read as under: 1. Whether the defendant has validly executed the agreement to sell dated 16.9.1972 in favour of the plaintiff? OPP 2. Whether the aforesaid agreement for sale has not been accepted by all the parties as envisaged by Section 54 of the J&K Transfer of Property Act? If so, what is its effect on the suit? OPD. 3. Whether the plaintiff obtained the defendants thumb impression on non -judicial paper against a loan of Rs. 5,000/ - and subsequently converted the document into an agreement to sell? OPD. 4. Whether the defendant did not own the house shown in the agreement dated 16.9.1972? If so, what is its effect on the suit? OPD. 5. Whether the suit is barred by limitation? OPD. 6. Whether the suit is bad in law without the plaintiff asking for consequential relief by way of possession? OPD. 7. Relief. Thereafter two additional issues seem to have been framed on 25.8.1977 which read as under: i) Whether an agreement for sale in respect of the suit house came to be executed between the parties on 28.7.1972 in which the sale consideration was fixed at Rs. 20,000/ - and whether the said agreement to sell was also an outcome of fraud? OPD. ii) In case issue No. proved what is its effect on the suit ? OPD. Respondent herein seems to have instituted a suit for declaration against the appellants to the effect that the agreement of 16 -9 -1972 was void, ineffective and against the plaintiff. The suit came to be instituted in subordinate court wherefrom it was transferred to this court. The appellants herein had filed the written statement and denied the contents of the plaint Respondent in his plaint had stated that the agreement of sale was outcome of fraud and was obtained by misrepresentation. He had denied the receipt of advance money and had stated that the agreement was not valid, therefore was liable to be set aside.;

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