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2012 DIGILAW 420 (PNJ)

Ishwar Dutt v. Saroj Rani

2012-03-05

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - Defendant-Ishwar Dutt having lost in both the Courts below has filed the instant second appeal. 2. Respondent-plaintiff Saroj Rani filed suit against defendantappellant for possession of the suit property by specific performance of agreement to sell dated 26.04.2001. Plaintiff alleged that the disputed residential plot was allotted to defendant by Haryana Urban Development Authority (HUDA) vide allotment letter No.4306 dated 06.05.1994. Registered conveyance deed dated 08.05.2004 of the suit property has been executed by HUDA in favour of defendant. The defendant agreed to sell the suit property to the plaintiff for total consideration of Rs.73,000/- and received the entire sale price and executed agreement dated 26.04.2001. Actual possession of the suit property was also delivered to the plaintiff at the time of agreement. Since conveyance deed by defendant in favour of plaintiff could not be executed till expiry of ten years from the date of allotment, defendant executed registered special power of attorney in favour of plaintiff’s husband Suraj Bhan authorizing him to execute and get registered sale deed of the suit property in favour of the plaintiff. However vide notice dated 28.06.2004, defendant cancelled the special power of attorney in favour of plaintiff’s husband. The plaintiff has always been ready and willing to perform her part of the contract, but the defendant committed breach thereof. 3. The defendant denied having agreed to sell the suit property to the plaintiff or having received any sale consideration or having executed the impugned agreement. It was pleaded that the defendant worked as Carpenter in the house of plaintiff’s husband many times and on account of confidence, defendant executed power of attorney in favour of plaintiff’s husband to get the conveyance deed of the suit property executed in favour of defendant from HUDA, but it was wrongly mentioned in the power of attorney that the document was executed for sale of plot in favour of plaintiff. Signatures of defendant were also obtained on stamp papers, now styled as impugned agreement. Various other pleas were also raised. 4. Learned Civil Judge (Junior Division), Kaithal vide judgment and decree dated 11.05.2009 decreed the plaintiff’s suit. First appeal preferred by defendant has been dismissed by learned District Judge, Kaithal vide judgment and decree dated 22.11.2010. Feeling aggrieved, defendant has filed the instant second appeal. 5. I have heard learned counsel for the parties and perused the case file. 6. 4. Learned Civil Judge (Junior Division), Kaithal vide judgment and decree dated 11.05.2009 decreed the plaintiff’s suit. First appeal preferred by defendant has been dismissed by learned District Judge, Kaithal vide judgment and decree dated 22.11.2010. Feeling aggrieved, defendant has filed the instant second appeal. 5. I have heard learned counsel for the parties and perused the case file. 6. Learned counsel for the appellant vehemently contended that in view of terms and conditions of the allotment letter the defendant could not transfer the suit property in any manner for ten years or till payment of full price to HUDA whichever was later and the impugned agreement having been executed during the said period of ten years, cannot be specifically enforced. Reliance in support of this contention has been placed on judgment of Hon’ble Supreme Court in case of Waheed Baig versus Bangi Lakshmamma & others, 2008(4) R.A.J. 451. It was also contended that the suit is barred by limitation because limitation period to enforce the agreement dated 26.4.2001 was three years but the suit was filed on 25.05.2005 i.e. after expiry of limitation period of three years. 7. I have carefully considered the aforesaid contentions but the same cannot be accepted. Defendant examined Jagat Singh, Assistant from Estate Office, HUDA as DW-1. In cross-examination, he stated that last installment of price of the suit plot was deposited by the allottee (defendant) on 26.04.2001 (the date of impugned agreement). He also admitted that thereafter nothing was due from the defendant to HUDA. Thus at the time of execution of impugned agreement, the defendant had already paid entire price of the suit plot to HUDA. Consequently the defendant became owner of the suit plot although formally title could pass to him after execution of registered conveyance deed in his favour. However, the fact remains that no amount remained to be paid by defendant to HUDA towards sale price of the suit plot. In this view of the matter, judgment in the case of Waheed Baig (supra) is not applicable to the instant case. In the case of Waheed Baig (supra), Government granted lease of a quarter to defendant (industrial worker) on hire-purchase basis. It was stipulated that lessee was not owner and had no right to alienate the quarter in any manner until sale price finally determined and paid by the lessee. In the case of Waheed Baig (supra), Government granted lease of a quarter to defendant (industrial worker) on hire-purchase basis. It was stipulated that lessee was not owner and had no right to alienate the quarter in any manner until sale price finally determined and paid by the lessee. However lessee entered into agreement with plaintiff to sell the quarter when the lessee had not become owner of the property. In these circumstances, it was held that the agreement could not be enforced specifically. In that case, price of the quarter had not been paid by the defendant and he had been allotted the plot on hire-purchase basis as lessee. He could become owner of the plot only after payment of full price, but he had not paid the full price at the time of execution of the agreement. However, in the instant case, the defendant had paid the full price of the plot to HUDA at the time of impugned agreement. Consequently judgment in the case of Waheed Baig (supra) is completely distinguishable on facts. Impugned agreement of the instant case can, therefore, be specifically enforced and there is no reason to decline the same. 8. As regards limitation period, contention raised by counsel for appellant himself proves that the suit is within limitation. The agreement could not have been specifically enforced till expiry of ten years from the date of allotment letter dated 06.05.1994. Consequently till before 06.05.2004, the plaintiff could not have sought specific enforcement of the impugned agreement. In other words, limitation period for filing suit for specific performance of the agreement commenced on 06.04.2004 and consequently the suit filed on 25.05.2005 is well within limitation. 9. It may be mentioned that execution of the impugned agreement has been duly proved by the plaintiff by leading sufficient evidence. The defendant also executed registered special power of attorney in favour of plaintiff’s husband mentioning that the defendant had agreed to sell the suit property to the plaintiff. The said registered document further authenticates and proves the impugned agreement. The said power of attorney being a registered document cannot be said to be result of fraud as alleged by the defendant. Even otherwise, self-serving oral statement of the defendant is not sufficient to prove the alleged fraud. The said registered document further authenticates and proves the impugned agreement. The said power of attorney being a registered document cannot be said to be result of fraud as alleged by the defendant. Even otherwise, self-serving oral statement of the defendant is not sufficient to prove the alleged fraud. On the contrary, the plaintiff besides herself appearing in the witness box has examined her husband as witness and has also examined an attesting witness of the impugned agreement namely Anil Kumar PW-7. There is concurrent finding by both the courts below regarding due execution of the impugned agreement. The said finding has not been challenged by advancing any meaningful argument. Even otherwise, the said finding is fully justified by the evidence on record and is not perverse or illegal in any manner or based on misappreciation or misreading of evidence. 10. For the reasons aforesaid, I find no merit in this second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Accordingly the appeal is dismissed. ---------0.B.S.0------------