Agreement to sell land barred by 10-year transfer prohibition after proprietary rights conferment is unenforceable for specific performance, but earnest money refundable with interest upon proof of payment.

Sushil Kukreja, J.

The instant appeal has been preferred by appellant-Smt. Kaushalya Devi, who was plaintiff before the learned Trial Court (hereinafter referred to as “the plaintiff”) under Section 96 CPC, against judgment, dated 02.01.2013, passed by learned District Judge, Solan, District Solan, H.P. (hereinafter referred to as “the learned Trial Court”), whereby civil suit filed by her was dismissed.

2. The brief facts of the case are that plaintiff filed a suit before the learned Trial Court seeking decree of specific performance of agreement, dated 17.07.2008, directing the defendant-Smt. Suini to execute the sale deed of the land comprised in khata/khatauni No. 1 min/5, kitas 14, to the extent of 1/5th share, which comes to 5-13 bighas, out of total 28-6 bighas, situated in Mauza Mangoti, pargana Basal, Tehsil Kasauli, District Solan, H.P. (hereinafter referred to as “the suit land”) in her favour on receipt of balance sale consideration with consequential relief of permanent prohibitory injunction. Alternatively, the plaintiff sought refund of earnest money of Rs.8,00,000/- alongwith interest from the defendant.

2(a). As per the plaintiff, the defendant was owner-in-possession of the land comprised in khata/khatauni No. 1 min/4, kitas 14, to the extent of 1/5th share, which comes to 5-13 bighas, out of total 28-6 bighas, situated in Mauza Mangoti, pargana Basal, Tehsil Kasauli, District Solan, H.P. On 17.07.2008, the defendant entered into an agreement with the plaintiff to sell the suit land to her for a total consideration of Rs.11,00,000/-, out of which defendant had received Rs.8,00,000/- from the plaintiff, as earnest money, and the balance was agreed to be paid at the time of execution and registration of the sale deed, which was to be executed, as and when revenue papers were completed by the defendant. As per the plaintiff, defendant had executed general power of attorney in favour of the plaintiff on 21.07.2008 qua the suit land alongwith an affidavit undertaking therein not to revoke/cancel the said general power of attorney, but the defendant cancelled/revoked the said power of attorney without any legal basis. Despite the repeated requests of the plaintiff, the defendant did not execute the sale-deed and avoided it on one pretext of other. Thus, the defendant failed to perform her part of the agreement and ultimately plaintiff was compelled to issue her notice, dated 01.12.2008, to execute sale-deed in the office of Sub Registrar, Kasauli, District Solan, on 23.12.2008. On 23.12.2008 the plaintiff, alongwith the balance sale consideration amount, went to the aforesaid office, but the defendant did not turn up to execute the sale deed.

2(b). The defendant contested the suit by filing written statement admitting that she was owner-in-possession of the suit land, but she denied that she entered into an agreement with the plaintiff for sale of the suit land for Rs.11,00,000/-. The defendant also denied that the plaintiff had paid her Rs.8,00,000/- and balance of Rs.3,00,000/- was agreed to be paid to her at the time of the execution of the sale-deed. She also denied execution of general power of attorney by her and the execution of any affidavit in favour of the plaintiff. As per the defendant, the alleged agreement of sale was forged and fabricated, which was never executed by her and the same had been manipulated and fabricated by the plaintiff alongwith her husband Prem Singh, Shyam Sunder and Prem S