In a suit for specific performance, the plaintiff must personally testify to prove their 'readiness and willingness'. A Power of Attorney holder cannot substitute the principal as a witness for acts or states of mind exclusively known to the principal.

CM-17621-C-2016

Prayer in the present application under Order 41 Rule 27 CPC read with Section 151 CPC is for producing certified copies of plaint, application under Order 7 Rule 11 CPC, written statement etc. and zimni orders in case titled as Surinder Kumar Vs. Kanta Rani regarding the same property in dispute, by way of additional evidence.

2. Order sheets show that notice in the present application was issued by Predecessor Bench vide order dated 02.02.2017; whereafter reply dated 02.03.2020 to the application has been filed by learned counsel for the non-applicant/plaintiff.

3. I have heard learned counsel for the parties.

4. In view of averments made in the application, which is supported by an Affidavit of the applicant/respondent, the same is allowed; and above said documents are taken on record by way of additional evidence, subject to all just exceptions.

RSA-275-2014 (O&M)

Present Second Appeal has been filed by the plaintiff against the judgment of reversal; whereby suit filed by the appellant for possession by way of specific performance and permanent injunction, although decreed by the learned Trial Court, has been dismissed by the learned First Appellate Court.

2. Brief facts of the case are that the plaintiff/appellant had filed a civil suit seeking possession as owner of suit plot measuring 248 sq. yds as described in the plaint by way of a specific performance of Agreement to Sell dated 04.01.1986; and suit for permanent injunction restraining the defendant from alienating the property in dispute. It was the pleaded case of the plaintiff that the defendant being owner of the suit property had agreed to sell the same to the plaintiff by way of Agreement to Sell dated 04.01.1986 for total sale consideration of Rs.1 lac. It was alleged that at the time of execution of the Agreement itself, defendant had received entire sale consideration of Rs.1 lac from the plaintiff i.e. Rs.50,000/- in cash and Rs.50,000/- by way of cheque dated 04.01.1986. Actual physical possession was also stated to have been delivered to the plaintiff at that time. No time for execution and registration of Sale Deed was fixed. It was further alleged that plaintiff was always ready and willing to perform her part of contract, but defendant had postponed the matter. Plaintiff had approached the defendant a week prior to filing of the present suit with a request to execute the Sale Deed, but defendant had demanded Rs.1 lac more and had threatened that otherwise he will alienate the suit land to some other person. Hence, present suit was filed on 30.05.2012.

3. Upon notice, defendant had put in appearance and resisted the suit by filing written statement averring that the suit is not maintainable as the plaintiff has not come to the court with clean hands and is not having no locus-standi to file the present suit. It was alleged that the present suit is counter blast to the previously instituted suit of the defendant titled as Surinder Kumar Vs. Kanta Rani. It was pleaded that the defendant never agreed to sell the property in dispute to the plaintiff. No agreement of sale dt. 4.1.86 had ever been executed by the defendant in favour of the plaintiff. It was alleged that a sum of Rs.50,000/- was borrowed by the defendant vide cheque No. 748843 dt. 4.1.86 from the husband of plaintiff namely Tarsem Lal, real brother of defendant which was subsequently returned. The alleged agreement of sale is forged and fabricated document prepared by the plaintiff