RAKESH KUMAR GARG, J. - (1.) THIS is plaintiff's second appeal challenging the judgment and decree dated 18.03.1997 of the Sub Judge (First Class), Chandigarh dismissing her suit for possession of the suit property by way of specific performance of the agreement to sell in question holding that the plaintiff -appellant was entitled to refund of Rs.50,000 along with interest. Further challenge has been made to the judgment and decree dated 05.01.2002 whereby the lower appellate Court affirmed the findings of the trial Court and dismissed the appeal of the plaintiff.
(2.) AS per the averments made in the plaint, Plot No.2183, Sector 35 -C, Chandigarh, measuring 475.32 square yards, was allotted in favour of K.L. Chadha on 02.06.1967. K.L. Chadha expired on 05.02.1980 leaving behind his wife Sushila Chadha, son Gurdev Chadha and two daughters namely Sudarshan Kohli and Promila Malhotra. Defendant No.1 -Sushila Chadha executed an agreement to sell in favour of the plaintiff -appellant with regard to the aforesaid Plot No.2183, Sector 35 -C, Chandigarh for a total sale consideration of Rs.8.00 lakh and received Rs.50,000 as earnest money. On the said date of execution of the agreement to sell, the plot was still standing in the name of K.L. Chadha. According to the appellant, detailed terms and conditions were incorporated in the agreement to sell and according to those terms and conditions, the plaintiff -appellant was entitled to get the sale deed executed in her name or in the name of her nominee. All the expenses were agreed to be borne by the appellant and the balance amount was to be paid at the time of execution of the transfer deed and its registration before the Sub -Registrar, Chandigarh. As per the further averments, the defendant assured that the property was free from sale, gift, litigation etc. The plaintiff was still ready and willing to get the sale deed executed and was even now ready to perform her part of the contract; however, she came to know that a registered notice dated 02.07.1989 was sent to M/s Shakti Property Dealers cancelling the agreement. The plaintiff -appellant served a registered notice upon defendant No.1 to transfer the property in her name by accepting the balance amount and by completing other formalities; however, the defendant did not come forward to do so, rather a reply to the notice was received in which defendant stated wrong facts. According to the appellant, it was known to the defendant from the very beginning that the plaintiff's husband was entering into the agreement on her behalf, thus, she was entitled to a decree of specific performance of the agreement to sell and for execution and registration of the sale deed by defendant Sushila Chadha. In the alternative, the plaintiff -appellant claimed a sum of Rs.8.00 lakh as loss. The appellant further prayed that defendant be restrained from alienating the suit property during the pendency of the suit.
(3.) UPON notice, defendant No.1 appeared and filed written statement raising various preliminary objections stating that the suit was based on misrepresentation and suppression of material facts and the same was not maintainable in view of the Clause mentioned in para No.2 of the agreement to sell and the plaintiff -appellant had willfully withheld the Clause according to which in case any of the legal heirs of K.L. Chadha was not interested in selling the plot the bargain shall stand cancelled without any penalty. According to defendant No.1, the aforesaid Clause was inserted by the plaintiff -appellant and in view of the aforesaid Clause, there was no privity of contract, as one of the co -owners namely Sudharshan Kohli, the step daughter of defendant No.1, had filed a suit and obtained stay orders and the said fact was in the knowledge of the plaintiff -appellant. It was further stated that the suit was based on an agreement to sell which was executed by defendant No.1 without having any authority on behalf of the other co -owners and the same cannot bind the other co -owners. The rider was put in the agreement and the plaintiff as well as her Property Dealer was informed of the fact. Not only this, a legal notice dated 01.07.1989 was served upon the plaintiff as well as M/s Shakti Property Dealer. The plaintiff was offered refund of Rs.50,000 which she refused to accept. It was further pleaded that the agreement was not enforceable as all the parties have not signed the agreement nor have they agreed to sell the property. It was further stated that the agreement was executed through M/s Shakti Property Dealer who never allowed the defendant to meet the appellant. It was further averred that at the time of execution of the agreement, it was made clear to M/s Shakti Property Dealer that the agreement was to be cancelled if either of the co -owners do not agree to sell or is not interested to sell the property, which was promptly informed on filing of the suit by defendant No.2 -Sudarshan Kohli. The other allegations were denied and dismissal of the suit was prayed for.;