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Himachal Pradesh High Court · body

2011 DIGILAW 1033 (HP)

Mugti v. Prago Devi

2011-03-08

DEEPAK GUPTA

body2011
JUDGMENT This Regular Second Appeal is directed against the judgment and decree dated 13.7.1999 passed by the learned District Judge, Chamba, whereby he dismissed the appeal filed by the plaintiffs-appellants and upheld the judgment and decree delivered by the learned Sub Judge 1st Class, Chamba, District Chamba, H.P, on 5.6.1998 in Civil Suit No.50 of 1997/95 dismissing the suit of the plaintiff. 2. The facts of the case are that Deu Ram predecessor-in-interest of the present appellants filed a suit against Hako predecessor-in-interest of the respondent praying for a decree for Specific Performance of Contract and directing the defendant to execute the sale deed of the suit land measuring 3 bighas 5 biswas. 3. The State of Himachal Pradesh had granted ‘Nautor’ to Shri Hako and according to the plaintiff out of this land, the defendant Hako agreed to sell 3 bighas 5 biswas of land to the plaintiff for consideration of Rs.3,000/-, which consideration was paid at the time of execution of the agreement on 5.6.1988 and possession was handed over to the plaintiff. According to the plaintiff, only the sale deed was to be executed after the expiry of period during which transfer of ‘Nautor’ land was banned. Admittedly, the land in question which has been granted to the defendant as ‘Nautor’ could not have been transferred by him before the expiry of 20 years of the grant of ‘Nautor’ which period expired on 24.3.1992. The plaintiff alleged that thereafter he requested the defendant to execute the sale deed, but he refused to do so. Hence, this suit. 4. The defendant contested the suit and pleaded that possession of the land was never delivered to the plaintiff nor any agreement was entered. The learned trial Court held that the agreement in question was executed on 5.6.1988, but came to the conclusion that the plaintiff was not in possession of the suit land and was not entitled to a decree for Specific Performance of Contract on the ground that he, the plaintiff, had neither averred nor proved that he was ready and willing to perform his part of the Contract. The second ground for refusing to pass such a decree was that there was no proper description or identification of the land and no effective decree can be passed. The appeal filed by the plaintiff has been rejected. Hence, the present appeal. 5. The second ground for refusing to pass such a decree was that there was no proper description or identification of the land and no effective decree can be passed. The appeal filed by the plaintiff has been rejected. Hence, the present appeal. 5. I have gone through the so called agreement which is Ex.PW2/H. I find that it is not at all agreement for sale, but is in fact an agreement which transfers the rights of the defendant in 3 bighas 5 biswas of land to the plaintiff. From this writing it is obvious that nothing further was to be done except getting the mutation attested in favour of the plaintiff. This agreement cannot be called an agreement to sell because an agreement to sell must show that something was to be done in the future. A perusal of the agreement shows that in fact nothing was to be done in future and the entire transaction was complete. This agreement is, therefore, hit by the ‘Nautor’ Rules which bars the sale of any land within the prescribed period which at the relevant time was 20 years. Also this document is neither properly stamped nor is it registered and, therefore, cannot be used for transferring the title. 6. Lastly, this document only shows that 3 bighas 11 biswas out of the entire ‘Nautor’ land was transferred to the plaintiff, but as found by both the Courts below the plaintiff is not in possession of any portion of the suit land. Further more there is no description or identification of the suit land either in the agreement Ex.PW2/A or in the suit itself. There is no way to identify the exact land, if any, which was sought to be transferred and, therefore, no effective decree of Specific Performance of Contract can be passed. 7. In view of the above discussion, I am of the considered view that no question of law, much less a substantial question of law arises in the appeal which is accordingly dismissed. No order as to costs.