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2004 DIGILAW 1038 (PNJ)

Mala Devi v. Jagdish Chand

2004-09-13

ADARSH KUMAR GOEL

body2004
Judgment Adarsh Kumar Goel, J. 1. The respondent-plaintiff Jagdish Chand filed a suit for specific performance alleging that Mala Devi, defendant No. 1 entered into agreement to sell the suit property for Rs. 14,000/- vide agreement dated 28.2.1995 and delivered possession thereof on receiving the payment but failed to execute the sale-deed. 2. The suit was contested. Agreement and receipt of sale consideration was denied and it was stated that defendant No. 1 had agreed to sell the site in question to Surinder Kaur, defendant No. 2 on 24.2.1995 after receiving Rs. 13,500/- and delivered possession to her and also executed power of attorney in her favour on 9.3.1995. 3. The trial Court held that the agreement was duly proved and it was also proved that the plaintiff was always willing to perform his part of the contract, having paid the entire consideration but since defendant No. 1 had already entered into agreement to sell the suit property prior to the agreement, in question had already been sold to some third party, the plaintiff should be refunded the amount of Rs. 14,000/- instead of passing a decree for specific performance. 4. On appeal, the lower appellate Court, while affirming the finding on proof of due execution of agreement dated 28.2.1995 and willingness of the plaintiff to perform his part of the contract, reversed the finding of the trial Court that decree for specific performance need not be passed. It was held that agreement Ex.D1 was to defeat the rights of the plaintiff; no sale deed had been executed nor Surinder Kaur took any steps to enforce her rights. It was held that plaintiff could not be declined specific performance once execution of agreement and willingness to perform his part of the contract was only proved and when no bona fide transfer was proved. 5. Learned counsel for the appellant submitted that the trial Court was justified in declining the relief of specific performance on account of previous agreement with Surinder Kaur. 6. Learned counsel for the respondent-plaintiff supported the finding of the lower appellate Court and submitted that the defendant-appellant had denied execution of agreement and the same having been duly proved, plea of prior alienation was rightly held not to be proved. 7. 6. Learned counsel for the respondent-plaintiff supported the finding of the lower appellate Court and submitted that the defendant-appellant had denied execution of agreement and the same having been duly proved, plea of prior alienation was rightly held not to be proved. 7. After hearing learned counsel for the parties, I am unable to hold that the view taken by the lower appellate Court is perverse or that any substantial question of law arises. Both the courts below held the agreement dated 28.2.1995 in favour of the plaintiff, to be duly proved. The lower appellate Court, for the reasons mentioned in paras 12 to 15 of the impugned judgment, rightly held that prior agreement dated 24.2.1995 was not proved and could not be held to be bona fide. This finding cannot be held to be perverse. The appeal is dismissed.