SMT. BOHATI WIFE OF SHRI BISHAMBER SINGH R/O VILLAGE GEE MOHAMMAD PUR SAYEED PUR, TEHSIL ROORKEE, DISTRICT - HARIDWAR Vs. SMT. MEERA DEVI WIFE OF SHRI DHARAM PAL,
HIGH COURT OF UTTARAKHAND
Smt. Bohati Wife Of Shri Bishamber Singh R/O Village Gee Mohammad Pur Sayeed Pur, Tehsil Roorkee, District - Haridwar
Smt. Meera Devi Wife Of Shri Dharam Pal,
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U.C. Dhyani, J. -
(1.) THIS appeal preferred by defendant/appellant Smt. Bohati wife of Shri Bishamber Singh under Section 100 of C.P.C. is directed against the judgment and decree dated 22.10.2001 passed in Civil Appeal No. 25 of 1999 whereby learned Civil Judge, Senior Division, Roorkee allowed the appeal and set aside the judgment and decree dated 17.02.1999 passed by Civil Judge, Junior Division, Rookee in Original Suit No. 257 of 1995. Brief facts of the case are that Dharmpal son of Phool Chand instituted a civil suit no. 25 of 1995 in the Court of Civil Judge, Junior Division, Roorkee against the defendants Ram Kishan, Malkhan and Smt. Bohati for specific performance of contract. It was averred in plaint that defendant no. 1 Ram Kishan was bhumidhar with transferable rights of the disputed land from August, 1999 onwards. The defendant no. 1 entered into a registered agreement on 27.08.1993 in lieu of Rs. 20,000/ - . The agreement was registered before the Sub -Registrar, Roorkee. Defendant no. 1 obtained an advance of Rs. 8,000/ - from the plaintiff and agreed to pay Rs. 12,000/ - at the time of execution of sale -deed. It was agreed upon between the parties that the sale -deed was to be executed by 27.08.1994. It was also agreed upon between the parties that defendant no. 1 shall obtain Rs. 12,000/ - from the plaintiff and shall hand over the possession of the disputed land on the same day. The land in question was detailed and specified at the foot of the plaint.
(2.) SINCE defendant no. 1 was a person of Scheduled Caste community and it was necessary for him to obtain permission of the Collector under Section 157A of the U.P.Z.A. & L.R. Act, if he wanted to sell it off to a Non - Scheduled Caste person, therefore it was agreed upon between the parties that the defendant no. 1 shall obtain permission of the Collector within a stipulated period. As soon as the defendant no. 1 shall obtain such permission, he will give notice in writing to the plaintiff/respondent and the sale -deed will be executed one month thereafter. The plaintiff / respondent was always ready and willing to perform his part of obligation. He was always and is always ready to pay expenses to defendant no. 1 in order to get the sale -deed of land in question executed in his favour. Defendant no. 1 sought time from the plaintiff to obtain permission of the Collector. Plaintiff/respondent continued to make request to defendant no. 1 for obtaining permission from the Collector, but the defendant no. 1 did not do so. Plaintiff/respondent served a registered notice dated 16.03.1994 as well as notice under postal certificate upon the defendant no. 1 requesting him to obtain permission from the Collector, take the balance and execute sale -deed on 05.04.1994. This notice was served upon the defendant no. 1 but even after service of such notice defendant no. 1 did not appear before the Sub -Registrar for execution of sale -deed. Plaintiff/respondent continued to remain sitting in Sub -Registrar's office from morning till evening along with balance amount. He got his attendance registered before the Sub -Registrar. It was also averred in the plaint that on 22.07.1994 plaintiff/respondent served a registered notice upon the defendant no. 1 again requesting him to execute sale -deed on 27.08.1994. The said notice was also served upon defendant no. 1 but the said defendant did not turn up before the Sub -Registrar, Roorkee on 27.08.1994. Plaintiff remained present in Sub -Registrar's office from morning till evening along with money and got his presence registered before the Sub -Registrar. The Plaintiff/respondent tried to meet defendant no. 1 personally, but could not. Plaintiff/respondent came to know after a few days that the defendant no. 1 has sold the property in question to defendant no. 2 in order to cause harm to the plaintiff/respondent. Defendant no. 1 left his parental village Khubban Pur and started living in village Sunahti Kharkadi. Defendant no. 1 had no right to sell the property in question in favour of defendant no. 2. Defendant no. 2 was having the knowledge of the agreement executed by the defendant no. 1 in favour of the plaintiff/respondent and in spite of that defendant no. 2 got the sale -deed executed from defendant no. 1 in his favour.
(3.) THEN again, defendant no. 2 also sold the said property in favour of defendant no. 3. Defendant no. 3 also knew it fully well that the agreement to sell was executed in favour of the plaintiff/respondent by the defendant no. 1 and spite of that he got sale -deed executed in his favour on 24.02.1995. Defendant no. 3/appellant as well as her husband Bishamber Singh were well aware about the agreement to sell executed by defendant no. 1 in favour of the plaintiff/respondent. Plaintiff/respondent was and is willing to perform his part of contract from the very beginning and he is entitled to a decree of specific performance of contract against the defendant no. 1. An alternative relief was claimed by the plaintiff/respondent that in case the decree of specific performance of contract was not granted in his favour then the defendant no. 1 may be directed to pay the plaintiff/respondent Rs. 8,000/ - (advance money), interest at the rate of 2 per cent per mensem, damages Rs. 4,320/ - ( total - Rs. 12,320/ - ).;
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