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2011 DIGILAW 500 (DEL)

Madan Lal Khurana v. Sudesh Batra & Anr

2011-05-04

INDERMEET KAUR

body2011
Indermeet Kaur, J. (Oral) 1. This appeal has impugned the judgment and decree dated 22.11.2003 which had endorsed the finding of the trial judge dated 19.4.2001 whereby the suit filed by the plaintiff Madan Lal Khurana seeking specific performance of an agreement to sell dated 19.8.1975 (Ex.PW-1/1) as also a declaration and permanent injunction to the effect that the defendant be injuncted from interfering in the premises i.e. Half of property bearing No. E-30, Block-II, Railway Colony, Greater Kailash, New Delhi (hereinafter referred to as `the suit property') had been dismissed. 2. This is a second appeal. The parties are closely related. Plaintiff Madan Lal Khurana has since expired. He is represented by his widow Raj Rani Khurana, she is the niece of the defendant Sudesh Batra. The case of the plaintiff as is evident from the pleadings is that the parties had entered into an agreement to sell on 19.8.1975 by virtue of which the defendant agreed to sell half of the suit property in favour of the plaintiff. The defendant had been allotted the whole plot No. E-30, Block-II, Railway Colony, Greater Kailash Enclave-II, New Delhi from EP Railway Refugee Rehabilitation and House Building Cooperative Society Limited; the demand raised upon the defendant was Rs. 15,066/-, he was not able to fulfill the entire demand; the plaintiff agreed to pay 50% of the said amount i.e. Rs. 7,533/- for half of the undivided plot. In lieu of the plaintiff having agreed to make half payment of the demand upon the defendant the aforenoted agreement to sell Ex.PW-1/1 had been entered into between the parties. This is an admitted document. 3. The defence of the defendant in the courts below was that he had cancelled this agreement to sell which has been executed between the parties. Suit filed by the plaintiff in April 1989 was time barred as the cancellation of the aforenoted document had been communicated by him vide his communication dated 12.6.1984 (Ex.DW-1/1). 4. Ex.DW-1/1 dated 12.6.1984 has been perused. It has specifically cancelled the GPA and will dated 19.8.1975; there is no reference to the agreement to sell. A subsequent document i.e. the communication dated 15.4.1986 (mark A/ admitted document) had been sent by the defendant to the plaintiff wherein he had made a specific reference of the agreement to sell cancelling it. Ex.DW-1/1 dated 12.6.1984 has been perused. It has specifically cancelled the GPA and will dated 19.8.1975; there is no reference to the agreement to sell. A subsequent document i.e. the communication dated 15.4.1986 (mark A/ admitted document) had been sent by the defendant to the plaintiff wherein he had made a specific reference of the agreement to sell cancelling it. The impugned judgment returning a finding that the suit of the plaintiff filed in April 1989 is time barred as the agreement to sell had in fact been cancelled by the defendant on 15.4.1986 is prima facie not borne out from the record. 5. This is a second appeal court. It can interfere only if the finding in the impugned judgment is perverse. What is perverse has been detailed by the Courts time and again. If evidence has been wholly ignored it would amount to a perversity. Record shows the affidavit Ex.PW-1/3 dated 4.9.1977 i.e. the affidavit of the defendant has not been considered. The trial court as also the impugned judgment of the first appellate court have given a total go by to this document. Learned counsel for the appellant pointed out that this has raised a substantial question of law. 6. This submission of the learned counsel for the appellant is borne out from the record. Although Ex.PW-1/3 had been exhibited in the testimony of PW-1 yet both the judgments of the trial court as also the impugned judgment have not made any reference of this document. This is a valuable document as has been highlighted from its context by the learned counsel for the appellant. Be that as it may this Court, this submission of the learned counsel for the appellant has force. This Court is however not adverting to the merits of the controversy between the parties. 7. This is, however, a fit case for the remand. The matter is accordingly remanded back to the trial judge to consider the controversy afresh and to give issue-wise findings on the merits of the case. For the said purpose the parties will appear before learned District & Sessions Judge (Central) on 08.4.2011 at 10.30 AM who will assign the case to the concerned trial judge. 8. Record be returned back.