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Himachal Pradesh High Court · body

2009 DIGILAW 832 (HP)

APNO BABA REAL ESTATE PVT. LTD v. MANGLA

2009-10-06

DEV DARSHAN SUD

body2009
JUDGMENT Dev Darshan Sud, J.-This suit has been instituted by the plaintiff praying for the following reliefs:- (a) “Pass a decree for possession by way of specific performance of the agreement to sell dated 29th March, 2007 with respect to the land measuring 2 bigha 19 biswas comprised in Khata Khatauni No.7/11 to 18 out of the land 16/288 share measuring 3 bigha 1 biswa out of the total land comprised in Khata KHatauni No.7/11 to 18, Kitas measuring 55 bighas 10 biswas situated at Mauja Pateog, Tehsil and District Shimla (H.P.) andalso by putting the plaintiff in vacant and peaceful possession of the same; (b) Pass a decree for permanent prohibitory injunction restraining the defendant form selling, transferring, alienating or encumbering the suit property in any maneer whatsoever and further restraining them from changing its nature detailed in para(a) supra either themselves or through their representatives, servants, agents, acquaintances, legal heirs etc. (c) Directing the defendant to execute the requisite affidavit as well as all other documents which are necessary for the purpose of obtaining permission under section 118 of the H.P. Tenancy and Land Reforms Act, 1972 and thereafter get the sale deed executed and registered in favour of the plaintiff-company; (d) Allow anyother relief in favour of the plaintiff company and against the defendant to which the plaintiff company is found entitled in the peculiar facts and circumstances of the case and; (e)Allow costs of the suit in favour of the plaintiff company and against the defendant in the interest of justice.” 2. Notices of the suit were issued to the defendant, but despite service she remained absent and by an order of this Court dated 21st May, 2008, the defendant was proceeded ex-parte as, despite service she was absent from Court and there was no representation on her behalf at any stage. The plaintiff has recorded his ex-parte evidence. The following issues arise for determination:- (1) Whether the plaintiff is entitled to the relief of specific performance and permanent prohibitory injunction restraining the defendant from selling, transferring, alienating or encumbering the suit property in any manner? OPP. (2) Whether the plaintiff is entitled to the relief of mandatory injunction directing the defendant to execute all necessary papers as required for registration, sale deed and affidavit etc. required under the H.P. Tenancy and Land Reforms Act, 1972? OPP. ISSUE No.1: The plaintiff has appeared as PW-1. OPP. (2) Whether the plaintiff is entitled to the relief of mandatory injunction directing the defendant to execute all necessary papers as required for registration, sale deed and affidavit etc. required under the H.P. Tenancy and Land Reforms Act, 1972? OPP. ISSUE No.1: The plaintiff has appeared as PW-1. He states on oath in his evidence that he is Director of the plaintiff-Company and is duly authorized to represent it. Ex.P-1 is the Certificate of Incorporation issued by the Registrar of Companies to the plaintiff and Ex.P-2 is the Resolution of the Board of Directors of the plaintiff authorizing PW-1 Shri Sunil Kukreja, who is also the Director of the Company, for conducting all legal matters/proceedings for and on behalf of the plaintiff in Court. Ex.P-3 is the Certificate of Registration of the plaintiff with HIMUDA. Plaintiff pleads that an agreement to sell Ex.P-4 was executed on 29th March, 2007 between defendant Smt.Mangla wife of Shri Krishan Chand and the plaintiff. This agreement was executed through PW-1 Sunil Kukreja, who is the Director of the plaintiff-Company. The agreement recites that the seller-defendant is the owner in possession of the land to the extent of 16/288 share, measuring 3 Bighas 1 Biswas, of the land comprised in Khata Khtauni No.7/11 to 18, measuring 55 Bighas 10 Biswas, situated at Mauza Pateog, Tehsil and District Shimla. The total sale consideration agreed to was Rs.23,60,000/-, out of which a sum of Rs.one lac was paid to the defendant at the time of execution of the agreement to sell Ex.P-4 and the balance sale consideration of Rs.22,60,000/-was to be paid at the time of registration of the sale deed. According to the conditions incorporated in Ex.P-4, the salient features which be noticed are that the seller would hand over vacant possession of the suit land to the purchaser at the time of the registration of the sale deed. The land was to be free from all encumbrances, charges, claims, litigation etc. Permission under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972, was to be obtained by the plaintiff herein and that the defendant would help in executing/filing such documents as may be required in law. He states that a sum of Rs.one lac had been paid to the defendant and her thumb impressions have been identified which are encircled A-1 to A-6 on Ex.P-4, i.e. agreement to sell. He states that a sum of Rs.one lac had been paid to the defendant and her thumb impressions have been identified which are encircled A-1 to A-6 on Ex.P-4, i.e. agreement to sell. The witness also states that he had approached the defendant on a number of occasions calling upon her to fulfill all the requirements/formalities under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972, so that the sale deed could be executed and offer to pay balance sale consideration. The defendant refused to comply. A sum of Rs.25 lacs belonging to the plaintiff is lying deposited in the ICICI Bank, Guru Harkrishan Nagar, paschim Vihar, New Delhi. Plaintiff was always ready and willing to perform its part of the agreement and was at all times possessed of sufficient funds. PW-2, Madan Thakur, is the marginal witness of Ex.P-4 and states that the agreement to sell Ex.P-4 has been executed in his presence and that he signed as a witness. He has identified his signatures at point`B’ on this document. He also identified the thumb impressions of the defendant at mark A-1 to A-6 which were affixed in his presence. This is the entire evidence on the record. From the un-rebutted evidence of the plaintiff I find that the plaintiff is ready and willing to perform its part of the contract and is possessed of sufficient funds to pay the sale consideration. This issue is decided in favour of the plaintiff and against the defendant. ISSUE No.2: In view of my findings on issue No.1, this issue is also decided in favour of the plaintiff and against the defendant. The suit of the plaintiff is decreed with costs throughout. A decree for specific performance directing and commanding the defendant to execute sale deed with respect to the land measuring 2 bigha 19 biswas comprised in Khata Khatauni No.7/11 to 18, out of the land 16/288 share, measuring 3 bigha 1 biswa, out of the total land comprised in Khata Khatauni No.7/11 to 18, measuring 55 bighas 10 biswas, situated at Mauza Pateog, Tehsil and District Shimla (H.P.) as fully described in Ex.P-4 and also by putting the plaintiff in vacant and peaceful possession of the same, is granted in favour of the plaintiff and against the defendant. For executing the sale deed in terms of Ex.P4, the plaintiff shall issue notice to the defendant alongwith a copy of this judgment and decree calling upon her to be present in the office of the Sub Registrar(Rural), Shimla on a particular day and date. Before that, the plaintiff shall apply for necessary permission under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. The plaintiff shall also call upon the defendant to execute such documents/affidavit as are necessary and required for the purposes of obtaining permission from the Government for purchase of this land. In the absence of the defendant not giving such `No Objection’ etc. it will be open to the plaintiff to approach this Court for the appointment of a Commissioner through whom the sale deed will be executed for or on behalf of the defendant. The balance sale consideration shall be paid by the plaintiff to the defendant at the time of the registration of the sale deed. In case of her refusal to appear before the Sub Registrar (Rural), Shimla, on the date and time so fixed, the balance consideration shall be deposited in this Court. It will be open to the plaintiff to apply for the execution of the sale deed through a Court Commissioner in case of the failure of the defendant to execute the deed. A decree of permanent prohibitory injunction is granted in favour of the plaintiff and against the defendant restraining and prohibiting her from selling, transferring, alienating, encumbering or in any manner changing the nature of the suit land measuring 2 bigha 19 biswas comprised in Khata Khatauni No.7/11 to 18, out of the land 16/288 share, measuring 3 bigha 1 biswa, out of the total land comprised in Khata Khatauni No.7/11 to 18, measuring 55 bighas 10 biswas, situated at Mauza Pateog, Tehsil and District Shimla (H.P.). A decree in term as enumerated above be drawn up.