JUDGMENT : The appellant assails judgment and decree passed by learned District Judge, Solan, District Solan, H.P., in Civil Suit No. 17-S/1 of 2009, whereby the suit of the respondent has been decreed for recovery of Rs. 10,00,000/- along with proportionate costs and interest @ 6% per annum from the date of filing of the suit till realization of the whole decretal amount. 2. The respondent herein (hereinafter referred to as plaintiff) filed a suit for recovery of Rs.11,00,000/- along with future interest @12% per annum against the appellant (hereinafter referred to as the defendant). 3. Plaintiff and defendant had entered into an agreement dated 10.08.2006 (Ex.PW1/B) whereby plaintiff had agreed to purchase 5/19 share measuring 5 Biswas including two storeyed house, owned and possessed by defendant, in Khasra number 66, total measuring 19 Biswas, situated at Village Thada Ka Thakurdwara, Tehsil Kasauli, District Solan, H.P. (for short “suit land”). 4. Plaintiff filed the above noted suit against the defendant on the premise that the performance of agreement Ex.PW1/B had been frustrated on account of acts of omissions and commission on the part of the defendant. Plaintiff specifically averred in the plaint that defendant had represented himself to be the absolute and exclusive owner of the house and five Biswas of land, hence, plaintiff on such belief had entered into agreement, Ex.PW1/B. Further, plaintiff alleged that she later on came to know that defendant was co-owner with Shri Roop Lal son of Shri Dila Ram and Roop Lal son of Shri Kanshi Ram, which provided her with reasons to apprehend that the suit land was not identifiable and further NOC from other co-owners was also required. As per plaintiff, defendant purposely and willfully abstained from getting the house and land identified and demarcated, despite repeated requests of the plaintiff. It was also averred that plaintiff always was ready and willing to perform her part of contract but it suffered frustration due to non-cooperation from the defendant. Plaintiff also alleged that she had visited the house of the defendant many times with her relatives, requesting him to complete the documentation, but it was declared by the defendant that neither he would get NOC from co- owners nor would he get the house identified. 5. Plaintiff also pleaded her plight being a poor person. It was alleged that defendant could not usurp her hard-earned money and get unduly enriched. 6. 5. Plaintiff also pleaded her plight being a poor person. It was alleged that defendant could not usurp her hard-earned money and get unduly enriched. 6. Defendant contested the suit. He, however, admitted the execution of agreement, Ex.PW1/B and receipt of Rs.10,00,000/-. All other allegations against him were denied. He came out with the plea that neither he had refused the performance of his part of contract nor the performance thereof was frustrated. As per defendant, plaintiff could not arrange the balance of sale consideration. It was submitted that as per agreement Ex.PW1/B, the sale deed was to be executed by 10.02.2007. Since, 10.02.2007 happened to be the Second Saturday and the office of Sub Registrar was closed, defendant had telephonically asked the plaintiff to get the sale deed executed a day earlier, but she did not respond. Defendant again asked the plaintiff telephonically to get the sale deed executed on 12.02.2007 i.e., on the next working day. He kept waiting in the office of Sub Registrar throughout the day but she again failed to turn up. It was further submitted that defendant had purchased the share of 5 Biswas in Khasra No. 66, total measuring 19 Biswas situated at Mauza Thada Ka Thakurdwara, Tehsil Kasauli, District Solan, H.P., in the year 2000, from previous owner and had thereafter constructed a house after getting its plan sanctioned from the department of Town and Country Planning. Defendant also alleged that plaintiff had visited the house in question before execution of agreement, Ex.PW1/B and after having satisfied herself, she had executed the agreement. As per defendant, there was no need to obtain any NOC from the co-owners. His title was transferable and there was no legal impediment in execution of sale deed in terms of agreement Ex.PW1/B. 7. In replication, the plaintiff denied the averments made in the written statement and reiterated the contents of plaint. 8. On the pleadings of the parties, the learned trial Court had framed the following issues:- 1. Whether the plaintiff is entitled for a decree of Rs.11,00,000/- (Rs. Eleven Lac only) along with future interest from the date of suit till realization along with 12 percent interest per annum? OPP 2. Whether the plaintiff has no cause of action? 3. Whether the plaintiff has not come to the court with clean hands and has suppressed the material facts from the court? 4. Eleven Lac only) along with future interest from the date of suit till realization along with 12 percent interest per annum? OPP 2. Whether the plaintiff has no cause of action? 3. Whether the plaintiff has not come to the court with clean hands and has suppressed the material facts from the court? 4. Whether the plaintiff is estopped from filing the present suit due to her own acts, conduct and acquiescence? 5. Relief. 9. Plaintiff examined three witnesses besides herself. On the other hand, defendant appeared as his own witness and examined six more witnesses. 10. Ms. Rishpa Devi w/o Shri Ganesh Dutt and Shri Rikhi Ram s/o Sh. Mast Ram were the witnesses to execution of agreement Ex. PW1/B. Plaintiff examined both these witnesses as PW-2 and PW-3. Plaintiff examined herself as PW-1 and also examined PW-4 Shri Bhupinder Singh, Patwari, Patwar Circle Thada Ka Thakurdwara. 11. Defendant examined Shri Gian Chand, Ahalmad, Civil Judge (Senior Division), Kasauli with the records of Civil Suit No. 55/1 of 2008, titled as M/S Glorious Realcon Pvt Ltd. v/s Sohan Lal & Others. In order to prove sanctioning of plan of his house, Ex. DW2/B, by the department of Town and Country Planning defendant examined Shri Ramesh Bhardwaj (DW-2). DW-3 Shri D.K. Kaushal, Advocate, was examined to prove preparation and dispatch of legal notice dated 26.08.2008 by said witness on behalf of plaintiff. DW-4 Shri Ram Swaroop, Official from Sub Registrar Kasauli, was examined twice as DW-4 and DW-6 to prove the attestation of affidavit Ex.DW4/A sworn by defendant on 12.02.2007 and the affidavit Ex.PW6/A sworn by the plaintiff. DW-5 Shri Hari Dass, proved the postal receipt Ex.DW5/A. Defendant had examined himself as DW-7. 12. In addition, agreement Ex.PW1/B and a copy of jamabandi, Ex.PW1/C were proved on record by the plaintiff. Defendant proved reply dated 4.11.2008 (Ext.- DX) issued on his behalf, by his Advocate Shri V.S. Kashyap, to the plaintiff in response to her legal notice dated 26.08.2008 (Ext.-DW-3/A). Postal receipt dated 4.11.2008 was proved as Ext.-DY. 12. In addition, agreement Ex.PW1/B and a copy of jamabandi, Ex.PW1/C were proved on record by the plaintiff. Defendant proved reply dated 4.11.2008 (Ext.- DX) issued on his behalf, by his Advocate Shri V.S. Kashyap, to the plaintiff in response to her legal notice dated 26.08.2008 (Ext.-DW-3/A). Postal receipt dated 4.11.2008 was proved as Ext.-DY. NOC dated 19.05.2003 issued by the Planning Officer, Town and Country Planning Office, Solan, in favour defendant in respect of installation of water connection and electricity connection in his building constructed on Khasra No.66/1, Muaza Thada Ka Thakurdwara, was proved as Ext.-DW-2/A and the sanctioned plan of the house of defendant, sanctioned by Department of Town and Country Planning, was proved as Ext.-DW-2/B. An affidavit sworn by plaintiff was also exhibited as Ex.PW6/A. Additionally, the defendant also proved copy of plaint in Civil Suit No. 53/1 of 2008, titled as M/s Glorious Realcon Pvt. Ltd. vs. Sohan Lal & Ors., as DW1/A. 13. On completion of trial, learned trial Court decreed the suit of the plaintiff in terms, as noticed above. 14. I have heard Mr. B.N. Mishra, learned Senior Advocate with Ms. Vandana Mishra, Advocate, learned counsel for the appellant/defendant and Mr. N.K. Bhalla Advocate, learned counsel for the respondent/plaintiff and have also gone through the entire record carefully. 15. Plaintiff had alleged that since the defendant had only a share in the joint land, his title was not transferable. As per plaintiff, she apprehended that she would not get the exclusive right in the house and thus had asked the defendant to procure NOC from other co- owners. Plaintiff had also apprehensions about the identity of the house and as per her allegations, she had been repeatedly asking defendant to get demarcation and identification of the house. Thus, the plaintiff alleged frustration of contract by inaction of defendant and claimed refund of the amount paid by her to the defendant as advance at the time of execution of agreement, Ex.PW1/B. 16. In order to test the veracity of plaintiff’s case a glance at the contents of agreement Ext. PW-1/B becomes inevitable. The perusal of its contents does not suggest any ambiguity. The agreement clearly mentioned that defendant had 5/19 share in the land comprised in Khasra No.66, total measuring 19 Biswas situated at Mauza Thada Ka Thakurdwara, Tehsil Kasauli, District Solan, H.P., on which two storeyed house stood constructed. PW-1/B becomes inevitable. The perusal of its contents does not suggest any ambiguity. The agreement clearly mentioned that defendant had 5/19 share in the land comprised in Khasra No.66, total measuring 19 Biswas situated at Mauza Thada Ka Thakurdwara, Tehsil Kasauli, District Solan, H.P., on which two storeyed house stood constructed. A reference to jamabandi for the year 1998- 1999 was also made. It was also clearly mentioned that defendant had agreed to sell his above noted 5/19 share, which was in his possession, for consideration of Rs.25,00,000/- and had received a sum of Rs.10,00,000/- as advance from the plaintiff on the date of execution of agreement i.e. 10.08.2006. It was further agreed by the plaintiff and defendant that the balance consideration would be paid by the plaintiff to defendant at the time of registration of sale deed and date for such registration was fixed as 10.02.2006(2007). As per agreement, plaintiff could get the sale deed executed either in her name or in the name of her nominee within the agreed period. A right was reserved in favour of the plaintiff that in case the defendant failed to execute the sale deed, she would be entitled to double the amount of advance paid by her or to get the sale deed executed in her name or in the name of her nominee through the court of law. Similarly, right was reserved in favour of defendant that in case the plaintiff failed to get the sale deed executed in her favour or failed to pay balance sale consideration within agreed period, the advance amount paid by her would be forfeited and agreement would stand cancelled. 17. Noticeably, plaintiff had not sought the rescission of agreement at any stage. It was not the case of the plaintiff that agreement Ex.PW1/B was void or voidable, rather the case of the plaintiff was that the performance of agreement had been frustrated by acts of defendant. Thus, validity of the agreement was neither under challenge nor questioned at any stage of the proceedings. Rather, PW-2 and PW-3 have proved the due execution of agreement as plaintiff's witnesses. 18. Since plaintiff had not laid any challenge to the agreement Ex.PW1/B, therefore, she was not right in making averments which were contrary to its contents. The version of the plaintiff that she came to know later about jointness of the suit property, cannot be countenanced as correct. 18. Since plaintiff had not laid any challenge to the agreement Ex.PW1/B, therefore, she was not right in making averments which were contrary to its contents. The version of the plaintiff that she came to know later about jointness of the suit property, cannot be countenanced as correct. There was unambiguous recital in the agreement Ex.PW1/B that defendant was only a shareholder with possession of the suit land. 19. Plaintiff is also falsified on another material fact that she was not aware about the identity of the house and hence required demarcation before execution of sale deed. Defendant (DW-7) in his examination-in-chief had categorically stated that plaintiff had visited the house in question in the first week of August, 2006 and had expressed her willingness to purchase the house. At that time all the relevant documents, i.e. jamabandi and sanctioned map etc., were shown to her. It was thereafter that on 10.08.2006 the agreement Ex.PW1/B was executed at Garkhal. This part of the statement of defendant has remained unchallenged, which amounts to an admission of fact by the plaintiff. If the plaintiff had visited and seen the house in question, her subsequent conduct of resiling from this fact, reflects her malafide intent. Even otherwise, it is hard to believe that the plaintiff would have entered into an agreement by paying Rs.10,00,000/- as advance without even seeing the property intended to be purchased by her. This aspect gains relevance in the backdrop where the plaintiff had pleaded her plight as a poor person and Class-IV employee of Postal department. In the absence of any allegation of mis-representation, fraud, undue influence and coercion etc., plaintiff cannot be assumed to have executed the agreement for any other consideration. 20. The allegations of plaintiff that the sale deed could not have been executed for want of NOC from co- owners also is without any substance. There is no legal impediment that the share as held by the defendant could not have been transferred in favour of plaintiff. Section 44 of the Transfer of Property Act reads as under: - “44. The allegations of plaintiff that the sale deed could not have been executed for want of NOC from co- owners also is without any substance. There is no legal impediment that the share as held by the defendant could not have been transferred in favour of plaintiff. Section 44 of the Transfer of Property Act reads as under: - “44. Transfer by one co-owner.—Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling- house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.” Thus, the defendant as a co-owner was legally competent to transfer his share. 21. Plaintiff has failed to prove on record that the co-owners of defendant had any dispute with him in respect of the house agreed to be sold to plaintiff. There also is nothing on record to suggest that the house was not constructed by the defendant or any of the co-owner had ever raised any claim therein. The fact that the house was constructed by defendant by getting plan sanctioned from the Town and Country Planning department vide Ex.DW2/B, itself was sufficient to infer that the house exclusively belonged to the defendant. In view of this, the apprehension, if any, entertained by plaintiff, as alleged by her in the plaint, had no basis. Plaintiff also had failed to prove any basis for her apprehension. 22. Learned counsel for the plaintiff has contended with vehemence that since the area of Thada Ka Thakurdwara fell within the planning area declared under Himachal Pradesh Town and Country Planning Act (for short, “Act”) the registration of sale of joint holding without partition approved by the Director was impermissible under Section 16(c) of the Act. 22. Learned counsel for the plaintiff has contended with vehemence that since the area of Thada Ka Thakurdwara fell within the planning area declared under Himachal Pradesh Town and Country Planning Act (for short, “Act”) the registration of sale of joint holding without partition approved by the Director was impermissible under Section 16(c) of the Act. The contention so raised also deserves to be rejected for the simple reason that nothing has been placed on record by the plaintiff to show that Section 16(c) supra was applicable in the facts of the case. Section 16(c) of the Act would come into play only after publication of existing land use map by the competent authority under Section 15 of the Act in respect of any area declared as planning area under the Act. Simply because the area in question fell within the planning area declared under the Act, there could not be any legal impediment for sale of share in the joint property unless the existing land use map was prepared. Plaintiff had miserably failed to prove that existing land use map had been published in respect of the area in question. 23. Plaintiff had further failed to prove that she had the balance consideration amount available with her till 10.02.2007 or till the date of filing of suit. Nothing has been placed and proved on record by the plaintiff in this behalf. The fact that the plaintiff did not file a suit for specific performance implies that the plaintiff was not interested to purchase the suit land or did not have the money to pay balance sale consideration. Mere averment in the plaint that she was ready and willing to perform her part of contract does not satisfy the requirement of law. Section 22 of the Specific Relief Act reads as under: - “22. Mere averment in the plaint that she was ready and willing to perform her part of contract does not satisfy the requirement of law. Section 22 of the Specific Relief Act reads as under: - “22. Power to grant relief for possession, partition, refund of earnest money, etc.—(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for— (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1[made by] him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub- section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.” Thus, in case of any truth in the version of the plaintiff, she could have filed the suit for specific performance of contract with relief of possession or partition and separate possession in addition to relief of specific performance. Rather, plaintiff in her cross-examination had admitted that she along with her brother had entered into an agreement with the company named M/s Glorious Realcon Pvt. Ltd., to sell their property for sale consideration of Rs. 2,80,00,000/-. It was also admitted that plaintiff had received Rs.15,00,000/- as advance in pursuance to said deal and had paid Rs. 10,00,000/- out of that amount to the defendant. The subsequently failure of said deal, stood proved by document Ex.DW1/A, which was the plaint filed by M/s Glorious Realcon Pvt. Ltd., impleading the plaintiff as one of the defendants therein. All these circumstances are sufficient to infer that plaintiff either has abandoned the intent to purchase the suit property or had no money to pay the balance of sale consideration. 24. All these circumstances are sufficient to infer that plaintiff either has abandoned the intent to purchase the suit property or had no money to pay the balance of sale consideration. 24. There also was nothing on record to prove existence of any reason for the apprehension entertained by the plaintiff regarding execution of sale deed. From where the plaintiff entertained such apprehension has not come forth. Admittedly, plaintiff had not approached the Sub Registrar for execution of sale deed. She had not even verified such fact from the Town and Country Planning department. In these circumstances, the conduct of plaintiff clearly reveals that she herself had become disinterested in the purchase of the suit property and thus coined pretense for claiming the suit amount only. 25. Another fact which castes serious doubt on the bonafides of the plaintiff's claim is that the plaintiff had clearly denied having issued any notice to the defendant. However, DW-3 had admitted drafting and signing of notice on behalf of the plaintiff. Though, in cross- examination, DW-3 had stated that the notice was not sent from his office as the plaintiff had not finally turned up, such an explanation, however, appears to be afterthought. In case, the notice was not sent to defendant, how the defendant would have come in possession of such notice and would also have replied the same. Notice Ex.DW3/A was stated to have been received by the defendant through registered post. Registered envelope Ex. DW5/A has been proved on record which though bore the address of defendant of Village Gadiyana but an endorsement was made to the effect that the defendant was running a shop in Thada Ka Thakurdwara. Defendant had further proved the dispatch of reply to said notice, Ext.-DX, through registered post. Post receipt Ext.-DY dated 4.11.2008 had also been proved on record. Perusal of contents of notice Ex.DW3/A again belies the stand of the plaintiff. The notice Ex.DW3/A merely required the defendant to execute the sale deed as the plaintiff claimed to be ready and willing to perform her part of the contract. Vide reply Ext.-DX, defendant had specifically notified to the plaintiff that she herself had failed to execute the sale deed within the prescribed period and since the period of 1 ½ years had elapsed thereafter he was not bound to execute the sale deed. Vide reply Ext.-DX, defendant had specifically notified to the plaintiff that she herself had failed to execute the sale deed within the prescribed period and since the period of 1 ½ years had elapsed thereafter he was not bound to execute the sale deed. Even after issuance of notice, Ex.DW3/A the plaintiff had not chosen to file a suit for specific performance. In the absence of suit for specific performance and also in the absence of any evidence to show that performance of agreement Ex.PW1/B stood frustrated on account of acts of defendant, plaintiff could not be held entitled to the suit amount. Plaintiff herself had violated the terms of the agreement. She clearly had failed to come forward to perform her part of the agreement and to pay balance of the sale consideration to the defendant. Therefore, the defendant was not under any legal liability to execute the sale deed. 26. Learned counsel for the plaintiff has placed reliance on Section 55(b) of the Transfer of Property Act to raise an argument that the defendant was under a legal liability to produce the documents of title relating to the property which was in his possession. Such contention also has no basis. Plaintiff had examined PW-2 and PW-3 both of whom had stated that they had accompanied the plaintiff on her visits to defendant in relation with her demand for documents evidencing exclusive ownership of defendant over the suit land. Though reliance could not be placed on their statements as they evidently were close friends/relatives of plaintiff and were clearly interested witnesses, yet assuming their version to be true, the same will not help the cause of the plaintiff for the reason that plaintiff had no right to claim documents evidencing exclusive ownership of the defendant. No such promise had ever been made by defendant at any stage. Plaintiff had executed the agreement Ext. PW-1/B with eyes wide open. The documents required at the time of execution of sale deed could be the copies of the records of rights, which being public documents are available to all. Plaintiff could have easily procured the same. As noticed above, there is nothing on record to prove that her attempt to get the sale deed registered was foiled by objections being raised by the registering authority or any other authority competent to do so. Plaintiff could have easily procured the same. As noticed above, there is nothing on record to prove that her attempt to get the sale deed registered was foiled by objections being raised by the registering authority or any other authority competent to do so. Even otherwise, plaintiff had failed to prove that she had approached the defendant for documents, if any, and the defendant had refused to provide. 27. Agreement Ex.PW1/B carried a clear recital that in case plaintiff failed to perform her part of contract, the advance paid by her would be forfeited. Plaintiff filed the suit in August, 2009 i.e. after more than 1½ years from the date fixed for performance of contract. Still the plaintiff had not filed the suit for specific performance, noticeably proving absence of her readiness and willingness to perform her part of contract. In such view of the matter, defendant had every right to forfeit the advance amount paid by the plaintiff to him. 28. Lastly it has been contended on behalf of plaintiff that even on the equitable principle defendant was liable to restore the benefits received by him under the agreement as he could not get himself unduly enriched. The contention also deserves rejection. It has clearly been held hereinabove that it was plaintiff who herself was responsible for non performance of the agreement. It has been proved that plaintiff herself had abandoned the intent to purchase the suit property. She had not come forward at any time to offer balance sale consideration to the defendant. Plaintiff did not take any steps to get the sale deed registered in her favour. She did not approach the court for specific performance of the contract. In such circumstances, plaintiff has no right to raise the equitable plea. Plaintiff cannot claim benefits out of her own wrongs. 29. Learned trial Court had clearly erred in appreciating the facts of the case. The evidence on record had also not been appreciated in right perspective. Learned trial Court had failed to consider that the absence of readiness and willingness of the plaintiff to perform her part of contract was writ large from her conduct as she did not approach the court for decree of specific performance of contract, in absence of which the suit of the plaintiff could not have been decreed even for refund of amount of advance paid by her. 30. 30. Resultantly, the appeal is allowed. Judgment and decree passed by learned District Judge, Solan, District Solan, H.P. in Civil Suit No. 17-S/1 of 2009, on 01.08.2012, is set aside. The suit of the plaintiff is dismissed with no order as to the costs. All pending applications also stand disposed of. Records be sent back forthwith.