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IN THE HIGH COURT OF JUDICATURE AT PATNA
JITENDRA MOHAN SHARMA, J.
Saroj Sinha W/O Late Ramchandra Prasad Sinha - Appellant
Versus
Dr. Sharangdhar Prasad S/O Late Krishna Prasad and Ors. - Respondents
First Appeal No. 99 of 2012
Decided On : 25-10-2016
Suit for specific performance of contract for sale of property - Plaintiff's claim that she had paid Rs. 5,00,000/- as advance to defendant and that defendant had executed a deed of agreement to sell the property in her favour - Defendant denied the execution of the agreement and claimed that he had sold the property to another person - Trial court dismissed the suit and decreed the counterclaim filed by the defendant for eviction of the plaintiff from the shop occupied by her - Plaintiff appealed - Held, dismissing the appeal, that the plaintiff had failed to prove the execution of the agreement to sell by the defendant and that the defendant had given possession of the ground floor of the suit premises to her in part performance of the contract - Deed of agreement to sell dated 13.10.2000, available on record, is a forged and fabricated document - Plaintiff has failed to prove that she was given possession of the ground floor of the suit premises in part performance of the contract - Bai-beyana dated 24.06.2004 and registered sale deed executed in favour of defendant no. 2 is valid and genuine - Plaintiff has failed to substantiate her case - Sale deed of defendant no. 2 is valid, legal and effective documents and it is not hit by lis pendence - Plaintiff has not been able to prove her case and as such, she is not entitled for decree for specific performance of contract against the defendant no. 1 - Plaintiff has defaulted in paying the rent for more than two months and as such, she is liable to be evicted form one of the shop wherein she is running her garments shop - Trial court has rightly dismissed the suit and rightly decreed the counter claim.
Fact of the Case:
Plaintiff filed a suit for specific performance of contract against the defendant for sale of property. Plaintiff claimed that she had paid Rs. 5,00,000/- as advance to defendant and that defendant had executed a deed of agreement to sell the property in her favour. Defendant denied the execution of the agreement and claimed that he had sold the property to another person. Trial court dismissed the suit and decreed the counterclaim filed by the defendant for eviction of the plaintiff from the shop occupied by her.
Finding of the Court:
The plaintiff has failed to prove the execution of the agreement to sell by the defendant and that the defendant had given possession of the ground floor of the suit premises to her in part performance of the contract - Deed of agreement to sell dated 13.10.2000, available on record, is a forged and fabricated document - Plaintiff has failed to prove that she was given possession of the ground floor of the suit premises in part performance of the contract - Bai-beyana dated 24.06.2004 and registered sale deed executed in favour of defendant no. 2 is valid and genuine - Plaintiff has failed to substantiate her case - Sale deed of defendant no. 2 is valid, legal and effective documents and it is not hit by lis pendence - Plaintiff has not been able to prove her case and as such, she is not entitled for decree for specific performance of contract against the defendant no. 1 - Plaintiff has defaulted in paying the rent for more than two months and as such, she is liable to be evicted form one of the shop wherein she is running her garments shop - Trial court has rightly dismissed the suit and rightly decreed the counter claim.
Issues: 1. Whether Dr. Sarangdhar Prasad has executed agreement to sale dated 13.10.2000 in favour of the plaintiff/appellant and whether the same was changed at the time of keeping under the safe custody? 2. Whether the agreement to sale dated 13.10.2000 is forged, false and fabricated document and whether the defendant no. 1 had given possession of ground floor of suit premises to the plaintiff in part performance of the agreement ? 3. Whether the agreement to sale executed by defendant no. 1 in favour of defendant no. 1 on 24.06.2004 is valid and true and whether the sale deed executed accordingly by defendant no. 1 in favour of defendant no. 2 is right, valid and legal or hit by lis pendense. 4. Whether the plaintiff is entitled for decree of specific performance of contract ? 5. Whether the claim as made out in counter claim by the defendant is fit to be allowed ? 6. Whether the suit was rightly dismissed and counter claim was rightly allowed ?
Ratio Decidendi: The plaintiff has failed to prove the execution of the agreement to sell by the defendant and that the defendant had given possession of the ground floor of the suit premises to her in part performance of the contract - Deed of agreement to sell dated 13.10.2000, available on record, is a forged and fabricated document - Plaintiff has failed to prove that she was given possession of the ground floor of the suit premises in part performance of the contract - Bai-beyana dated 24.06.2004 and registered sale deed executed in favour of defendant no. 2 is valid and genuine - Plaintiff has failed to substantiate her case - Sale deed of defendant no. 2 is valid, legal and effective documents and it is not hit by lis pendence - Plaintiff has not been able to prove her case and as such, she is not entitled for decree for specific performance of contract against the defendant no. 1 - Plaintiff has defaulted in paying the rent for more than two months and as such, she is liable to be evicted form one of the shop wherein she is running her garments shop - Trial court has rightly dismissed the suit and rightly decreed the counter claim.
Final Decision: Appeal dismissed.
The instant appeal has been filed against the judgment and decree dated 30.03.2012, decree sealed and signed on 13.04.2012 passed by Sri Hari Shankar, the then Sub-Judge VIII, Patna in Title Suit No. 427 of 2004 whereby and whereunder the suit was dismissed on contest and counter claim of the defendant was decreed with direction to the plaintiff to vacate the suit premises within one month and also to pay rent at the rate of Rs. 1200/- per month regarding arrears of rent, failing which the defendant will be entitled to get the suit premises vacated and to realize the arrears of rent through the process of the court.
2. The plaintiff is the appellant and the defendants are the respondents.
3. The plaintiff has filed this suit for decree of specific performance of contract against the defendants with regard to property as mentioned in Schedule I of the plaint in her favour and to direct the defendant no. 1 Dr. Sarangdhar Prasad to get the sale deed of the suit property registered in her name by obtaining permission to sale it to the plaintiff after accepting the remaining amount of consideration money i.e. Rs. 5,00,000/- within time limit fixed by the court, failing which plaintiff may be directed to deposit Rs. 5,00,000/- in the court and the sale deed may be got registered and executed through the process of the court and the plaintiff may be put in possession over the suit land through the process of the court. Further to direct the defendant to pay the cost of the suit and other reliefs to the plaintiff.
4. Briefly stated, the case of the plaintiff is that the defendant Dr. Sarangdhar Prasad is an allottee and owner of land mentioned in Schedule I of the plaint. Dr. Sarangdhar Prasad himself has settled in United Kingdom and does not intend to return to India. Last time he was seen in India in the year 2000 when the defendant came to India lastly in the year 2000, the plaintiff was a tenant of the portion of the house in dispute. The defendant announced publicly to sale the disputed property, then the plaintiff expressed her desire to purchase the suit property from the defendant and proposed to pay Rs. 10,00,000/- as its consideration amount. There was no any other purchaser to purchase the said property for that value, therefore, this proposal between the plaintiff and defendant was finalized but as the suit house was not registered by the Bihar State Housing Board in favour of the defendant, the sale deed could not be executed. The defendant had to live very few days in India and he had to get the final deed of transfer of the disputed land in his favour to execute the sale deed to the plaintiff after obtaining permission for it. Within such short time it was quite impossible. The plaintiff agreed to suggestion of the defendant that out of the total amount of the consideration money, the plaintiff would pay Rs. 5,00,000/- to him and he assured that after returning to United Kingdom, he would execute power of attorney to his brother Agnidhar Prasad to this effect that after getting the final deed registered in the name of defendant and obtaining permission to sale the disputed land to the plaintiff, he would accept the remaining amount of consideration money Rs. 5,00,000/- and execute the registered sale deed in favour of the plaintiff. As per settlement, the plaintiff paid Rs. 5,00,000/- as advance money to the defendant Dr. Sarangdhar Prasad and he executed the deed of agreement to sale and as partial compliance of the agreement, he gave possession over the ground floor of the suit property to the plaintiff and went to United Kingdom leaving India in the month of November. As per his promise, Dr. Sarangdhar Prasad sent a power of attorney executed in favour of his brother Agnidhar Prasad. When the plaintiff came to know about the power of attorney, she made contact with Agnidhar Prasad who assured her to get the sale deed registered in her favour after the deed of transfer was registered in favour of the defendant
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