Judgment

23/03/2017

1. Both the appeals arise out of the same judgment and decree dated 8.4.2011 passed by learned Addl. District & Sessions Judge, Fast Track, Anoopgarh, Headquarter Suratgarh, therefore, they are being decided by this common order.

2. Appeal No.233/2011 has been preferred by defendant appellant Mal Chand and appeal No.143/2011 has been preferred by defendant appellant Anil Kumar to assail the judgment and decree dated 8.4.2011 passed by learned Addl. District & Sessions Judge, Fast Track, Anoopgarh, Headquarter Suratgarh in Civil Original Suit No.27/08 (54/1995). Learned trial Court has decreed the suit for specific performance of contract to sell dated 20.4.1990 and declared that sale deed executed in respect of shop No.71 situated in Dhan Mandi, Suratgarh by defendant No.1 Shiv Kumar in favour of defendant No.2 Malchand and defendant No.3 Shambhu Dayal on 18.7.1998 and also the sale deed executed further by defendant No.3 Shambhu Dayal in favour of defendant No.4 Anil Kumar on 11.9.1998 shall be null and void as against plaintiff Smt. Poonam Bansal. It was further directed that defendant Shiv Kumar will execute sale deed in respect of said shop No.71 in favour of plaintiff or any person as indicated by her within a period of two months failing which plaintiff shall be entitled to get the sale deed executed in her favour through Court. Further, the defendants were restrained from alienating the said shop to any other person. Taking note of the conduct of defendant No.1 and 2, learned trial Court also proceeded to impose a cost of Rs.3000/- on each of them as special damages in favour of plaintiff. Counter claim filed by defendant No.2 Mal Chand was rejected by the trial Court

3. Succinctly, the facts giving rise to this appeal are that suit for specific performance was initially filed by plaintiff Smt. Poonam Bansal through her power of attorney holder Mal Chand stating that an agreement to sell was executed by defendant Shiv Kumar in favour of plaintiff on 20.4.1990 in respect of shop No.71 admeasuring 30 x 90 ft. i.e. 2700 sq. ft. situated in Dhan Mandi, Suratgarh for a sum of Rs.79,779/-. Said agreement was got attested by Notary Public. It was agreed between them that when the permission to sale of said shop is obtained from the competent authority, sale deed would be executed within a period of six months therefrom. Possession of the shop was handed over when the agreement was entered into. Thereafter, on 20.10.1990, it was agreed upon between the parties that because of some matrimonial dispute pending between defendant Shiv Kumar and his wife, he is not in a position to get the sale deed executed and within fifteen days from decision of the said matrimonial dispute, he would get the same executed. Petition filed by wife of defendant against him was rejected in the month of December, 1992. Thereafter, plaintiff pursued the defendant for execution of the sale deed but he continued to avoid. Subsequently, he demanded a sum of rupees one lac more for enhancement in price of the shop. Plaintiff tried to resolve the matter through some mediator but failed. She served the defendant a notice dated 3.1.1994 but he did not execute the sale deed. Thereafter, suit was filed by plaintiff through her power of attorney holder Mal Chand.

4. During pendency of the suit, some dispute arose between plaintiff Smt. Poonam Bansal and her power of attorney holder Mal Chand as he got the sale deed executed for half of the shop in dispute in his own name and half of the shop was sold to one Shambhu Dayal on 18.7.1998, a person in whom Mal Chand had his confidence. In turn, Shambhu Dayal executed sale deed for this half portion of the shop in favour of Anil Kumar on 11.9.1998. For this reason, plaintiff Smt. Poonam Bansal, by way of filing an application before the trial Court obtained permission to pursue the suit at her own level. She also got Mal Chand, Shambho Dayal and Anil Kumar impleaded as defendants No.2, 3 and 4 respectiv