IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 16th DAY OF NOVEMBER 2021 BEFORE HON’BLE MS. JUSTICE JYOTSNA REWAL DUA REGULAR SECOND APPEAL NO. 490 of 2010 Between:-

SH. JOGINDER SINGH, S/O SH. NARAIN SINGH, RESIDENT OF VILLAGE DUGGA-KHURD, PO DUGGA, TEHSIL AND DISTRICT HAMIRPUR, HP.

…..APPELLANT/PLAINTIFF (BY SH. G.D. VERMA, SENIOR ADVOCATE WITH SH.

B.C. VERMA, ADVOCATE)

AND SMT. MEENA KUMARI, WIDOW OF LATE SH. ASHWANI KUMAR, RESIDENT OF PARTAP GALI, WARD NO. 6. M.C. AREA, HAMIRPUR, P.O. TEHSIL AND DISTT. HAMIRPUR, HP.

…..RESPONDENTS/DEFENDANTS (BY SH. NEERAJ GUPTA, SENIOR ADVOCATE WITH SH. AJEET PAL JASWAL, ADVOCATE)

WHETHER APPROVED FOR REPORTING? YES _______________________________________________________

This appeal coming on for hearing this day, the Court delivered the following:

J U D G M E N T

Suit for specific performance of contract filed by the appellant against the respondent was decreed by the learned trial Court. This decree was reversed in appeal by the learned first Appellate Court. Aggrieved, the plaintiff has instituted this regular second appeal.

Parties hereinafter are referred to as they were before the learned trial court.

2. Facts

2(i) Suit for possession by way of specific performance of agreement to sell dated 20.2.1996 in respect of land entered in Khata No. 58 Khatoni No. 60 Khasra No. 7 measuring 0-9 Marlas of 2/3 share measuring 0-6 Marlas, Khata No. 59 Khatoni No. 61 Khasra No. 6 measuring 1 Kanal 4 Marlas of 1/6 share mehasuring 0-4 Marlas, total area of both the Khatas meagsuring 0-10 Marlas, situate in Tika Dugga Khurd, Tappa iMatti-Morian, Tehsil and District Hamirpur H.P. was instituted by the appellant. The appellant/plaintiff pleaded that Shri Ashwani Kumar-husband of the defendant was owner in possession of the suit property. He entered into an agreement to sell with the plaintiff on 20.2.1996 in respect of the suit land for sale consideration amount of Rs. 2.25 lacs. Plaintiff paid a sum of Rs. 40,000/- to Shri Ashwani Kumar at home and Rs. 60,000/- were paid by the plaintiff by way of two different cheques. Pursuant to the agreement, possession of the suit land was handed over to the plaintiff. In terms of the agreement dated 20.2.1996, the sale deed was to be executed by Shri Ashwani Kumar, the husband of the defendant on or before 31.7.1996. The sale deed was not executed by 31.7.1996. Rather on 31.7.1996, Shri Ashwani Kumar executed another agreement in continuation of the ag reement dated 20.2.1996. The plaintiff paid Rs. 15,000/-r and Rs. 35,000/- by way of cheques to Shri Ashwani Kumar on 31.7.1996. The balance consideration amount of Rs. 75,000/- in terms of the agreement dated 31.7.1996 was to be paid to Shri Ashwani Kumar at the time of registration of the sale deed which was to be executed on or before 31.12.1996. Shri Ashwani Kumar, husband of the defendant kept on postponing the execution of the sale deed. On 31.12.1996, he, however, agreed to execute the sale deed by 31.3.1997. Shri Ashwani Kumar died on 26.1.1997. The plaintiff thereafter approached widow of Sh. Ashwani Kumar- the defendant for executing the sale deed in terms of the agreements dated 20.2.1996 and 31.7.1996. Legal notices were also issued to the defendants in this regard on 21.3.1997, 10.7.1997 and 23.12.1997. These were not responded by the defendant. All this led the plaintiff to file the civil suit praying for decree for possession by way of specific performance of the agreement to sell dated 20.2.1996.

2(ii) Written statement was filed by the defendant. She denied that any such agreement as asserted by the plaintiff was ever executed by her late husband. She denied receipt of payments allegedly made by the plaintiff to her husband. Defendant also raised an robjection that suit was not maintainable against her.

2(iii) The parties led evidence in support of their respective contentions. Oral as well as documentary evidence was produced. On consideration of the pleadings, evidence and contentions of the part