Valmiki J. Mehta, J (Oral)

1. The challenge by means of this Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 21.9.2002 by which the trial Court decreed the suit for recovery of damages filed by the respondent/plaintiff of Rs. 5 lacs alongwith interest.

2. The facts of the case are that respondent/plaintiff as an owner of 5 bighas and 6 biswas of land i.e. approximately 5400 sq. yds. in village Mitraon, Delhi entered into an agreement to sell with the appellant/defendant on 17.4.1990. The total sale consideration was fixed for the land to be sold at Rs. 9,75,000/-. It was stated that as per the agreement to sell, possession of the suit land was given to the appellant/defendant. The respondent/plaintiff received only a sum of Rs. 1 lakh under the agreement to sell. The case of the respondent/plaintiff was that on account of the appellant carving out a colony on this suit land which was agricultural land, the land got vested in the Gaon Sabha and therefore the subject suit for damages came to be filed. It may be noted that except an amount of Rs. 1 lakh which was received by the respondent/plaintiff under the agreement to sell as per the pleadings and evidence in the trial Court, nothing else was paid to the respondent/plaintiff i.e. there remained to be paid to the respondent/plaintiff the balance sale consideration of Rs. 8,75,000/-.

3. The appellant/defendant contested the suit and argued that it was the respondent/plaintiff who was guilty of breach of contract by not obtaining the NOC from the revenue authorities for the land to be sold in favour of the appellant/defendant. It is argued that the possession of the land was actually not given to the appellant/defendant under the agreement to sell and on the contrary it is the respondent/plaintiff who sold the land to different persons after carving out the colony and thus it was because of the respondent/plaintiff that the suit land got vested in the Gaon Sabha.

4. After the pleadings were completed, trial Court framed the following issues:-

"(i)

Whether the court has no territorial jurisdiction to try the suit in view of the provisions of D.L.R. Act, 1954? OPD

(ii)

Whether the plaintiff has no locus standi to file the present suit? OPD

(iii)

Whether the suit is bad for non joinder of necessary parties? OPP

(iv)

Which of the party failed to perform his part of liabilities as per the terms of the agreement to sell, if so its effect? Onus on the parties

(v)

To what amount of damages/decree of amount, the plaintiff is entitled against the defendant in the suit? OPP

(vi)

Whether the plaintiff is entitled to interest, if so at what rate, for which period and on what amount? OPP

(vii)

Relief."

5. The trial Court decreed the suit by giving the following findings with respect to issue Nos. 4 and 5:-

"17. These two issues are inter connected and for the sake of convenience are being tried together.

18. Admittedly, the parties entered into agreement to sell the suit land Ex.PW1/7 and the plaintiff received a sum of Rs. 1 lac as eanest money and the balance sale consideration was to be paid by the defendant within six months from the date of execution of the agreement dt.17.4.90. It is also not disputed that the suit land is an agricultural land and on account of its conversion into residential plots, it has vested in Gaon Sabha.

19. The plaintiff's case is that it is the defendant who has carved out residential plots in the suit land after entering into agreement to sell Ex.PW1/7 and did not show interest in execution of the sale deed. So, the suit land vested in Gaon Sabha causing a loss of Rs. 5 lacs to the plaintiff.

20. The case of the defendant is that it is the plaintiff who has carved out residential plots in the suit land resulting into vesting of the land in Gaon Sabha and the defendant cannot be blamed for it, so the suit is liable to be dismissed with exemplary costs. It is also argued that the plaintiff did not obtain