Sanjay Vats vs Attro
1989 Latest Caselaw 356 Del

JUDGMENT

P.N. Nag, J.

(1) In a suit for specific performance and perpetual injunction filed by the plaintiff against the defendant on the basis of an agreement to sell the agricultural land in village Mundka, Delhi dated 9th October: 1987 he has also filed an application under Order 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure praying therein that the defendant should be restrained from selling, transferring, alienating or otherwise encumbering the land in dispute and also interfering in any manner with peaceful possession of the plaintiff over such land.

(2) The relevant facts stated in the plaint by the plaintiff are that the defendant has entered into an agreement to sell the agricultural land bearing Khasra Nos. 111/13 (2-14), 111/17 (4.16), 111/18 (5-06) and 111124 (4-16), total measuring 37 bighas 12 biswas with the plaintiff on 9th October, 1987. The defendant having entered into the agreement to sell received a sum of Rs. 2,38,000 in advance by way of part payment from the plaintiff out of the total sale consideration of Rs 23,83,330 and the defendant executed 'a separate receipt for the amount so received by him. The balance consideration was to be paid by the plaintiff to the defendant at the time of registration of the sale deed within a period of twelve months from the date of execution of the said 'agreement. Pursuant to the agreement to sell, the possession of the suit land was delivered to the plaintiff on the spot by the defendant on the date of the agreement itself and the plaintiff has been in possession of the suit land since then. It was also agreed to and stipulated in the agreement that the defendant shall obtainthe necessary Income Tax Clearance Certificate as well as No Objection Certificate from the competent authorities and execute the regular sale deed in favor of the plaintiff within the stipulated time. As mentioned above, the sale deed was to be executed by the defendant in favor of the plaintiff within a period of twelve months from the date of the 'agreement, i.e., 9th October, 1987. It was also specifically agreed that if the defendant failed to execute the sale deed after obtaining the necessary certificates/documents for execution and registration of the sale deed within a period of twelve months from the date of the agreement, the plaintiff shall be entitled to seek enforcement of the agreement through the court of law, in addition to the right to recover double the advance money paid by the plaintiff to the defendant. It appears that the defendant because of escalation in prices has backed out from the agreement and does not want to sell the land in accordance with the agreement to sell. However, the plaintiff has all along been willing to perform his part of the agreement and is still willing for the same. The plaintiff has approached the defendant to effect the sale deed in .accordance with the terms of the agreement to sell but of no use. Hence this suit.

(3) The defendant, on the other hand, has emphatically stated that notwithstanding the alleged admission in the agreement to sell that vacant physical possession has been handed over to the plaintiff, in fact no possession whatever has been handed over. In fact it was agreed between the parties that the dehorse the said clause, the possession would remain with the defendant till the entire sale consideration was paid. In the revenue records till date the defendant continues to be shown as owner . in possession in the Khasra Girdawari for kharif 1988-89 prepared by the patwari after inspection of the site. The plaintiff admittedly not in possession is not entitled to any decree restraining the defendant from interfering with the non-existent possession of the plaintiff. Furthermore the case set up by the defendant is that the sale would be completed within six mouths of the execution of the agreement to sell. The plaintiff within this period neither paid nor tendered the balance sale consideration and to get out of his non-performance of his part of his contract made illegal interpolations in the agreement by changing the word "six" to "twelve". The plaintiff was never ready and willing to perform his part of the agreement/contract and hence he is not entitled to sue for specific performance much less obtain a decree there under. The time, according to the defendant, was the essence of the contract and, therefore, the suit merits dismissal.

(4) In the replication filed by the plaintiff, he has reiterated what he has said in the plaint. In addition he stated that the plaintiff had agreed to purchase the suit land from the defendant and one Dalel Singh had agreed to purchase the land of khasra No. 111/7 and 111/14 from Shri Sultan Singh son of the present defendant. The plaintiff and Dalel Singh carved out a colony named 'Mansukha Enclave' in entire aforesaid land. Several plots were booked after preparation of the layout plan. The defendant, her son and grandsons started interfering in the work of the colony and the plaintiff abandoned the scheme of the colony and decided to cultivate the land. Ploughing with the help of the tractor was got done by the plaintiff on 14th August, 11th September and 20th November, 1988. Sowing of wheat crop was done by the plaintiff on 21st November, 1988.

(5) On 13th October, 1988 when this suit was listed for admission the court ordered "Status quo regarding possession of the land as of today be also maintained". On 1st May, 1989 the parties arrived at an arrangement and defendant was directed "to deposit Rs. 25,000 in this court today and on her depositing this amount she is allowed to harvest the crop on the land in suit without prejudice to the respective contentions of the parties as to who is entitled to harvest the crop and who is in actual possession of the suit land and subject to decision of this I.A. This deposit of Rs. 25,000 is also subject to the final decision of Ia 717711989 as to who is entitled to receive this amount".

(6) At the time of hearing of this LA., learned counsel for the plaintiff vehemently contended that he is entitled to the grant of injunction as prayed for by him in the injunction application as he has a good prima facie case in his favor. In support of his case he submitted that the defendant has admitted to have executed the agreement to sell the suit land in favor of the plaintiff and according to clause (1) of the said agreement the possession of the suit land was delivered to the plaintiff by the defendant on the spot. It is no doubt true that according to clause (1) of the agreement the vacant and physical possession of title land in dispute was delivered to the plaintiff, the tact that the possession was delivered to the plaintiff on having entered into the agreement to sell also finds support from the Other submissions made by the learned counsel for the plaintiff that the plaintiff and one Dalel Singh had agreed to purchase the lands of khasra Nos. 111/7 and 111/14 from Sultan Singh, son of the present defendant. The present plaintiff and Dalel Singh carved out a colony named "Mansukha Enclave" in entire aforesaid land. Several plots were booked after preparation of the layout plan. Mere fact that the colony was being carved Out itself shows that the possession of the suit land was with the plaintiff and that is why the land has been shown as vacant as regards crops after October, 1987 in the Khasra Girdawari. Learned counsel turn the plaintiff has also filed various documents to show that the plaintiff was in physical possession of the suit land. He has filed photographs taken on 23rd Novernber,1988 with the replication to show that the plaintiff and.son of Dalel Singh and their labourer were working on the entire lands including the suit land. The plaintiff lodged a report with the police station and the son of the defendant was summoned by the police who gave in writing that he and the present defendant, his mother, and his sons shall not interfere in the lands during the pendency of the suit in the High Court and, thus, admitted the possession of the plaintiff over the suit land. The report lodged with the police and the statement made by the son of the defendant have been filed. The plaintiff also filed an affidavit of village Pradhan, Shri Vidya Prakash, on 24th April, 1989 to the effect that the defendant had obtained a certificate from him by fraud. It is further stated inthe affidavit that the defendant and her family members have not owned any bullocks during the last 10 years, whereas the defendant has claimed to have sown the crop with the help of bullocks. The affidavit of Up-Pradhan dated 30th April, 1989 states that the sowing was done by the plaintiff. By these documents the plaintiff wanted to substantiate that he was handed over the possession of the suit land at the time of entering, into an agreement of sale 'and is in possession of the land.

(7) Learned counsel for the defendant has vehemently contended that no doubt there is a recital 'n the agreement to sell that the possession stands delivered to the plaintiff but in fact such a possession was never delivered and that the defendant being an illiterate lady has signed it without knowing what she in fact had done. Under the law the defendant being a Bhumidar shall have the right to the exclusive possession of land comprised in his holding which shall be used only for agricultural purposes. Furthermore, in Khasra Girdawari the defendant has been shown to be in possession of the land in dispute. Even if the last Khasra Girdawari shows the land as a vacant land it is presumed that she is in possession, since the defendant is a Bhumadar she has a title over the property. The possession of the vacant land shall be construed to be her possession. Again, even in accordance with the agreement to sell the defendant has received only Rs. 2,38,000 leaving a balance of about Rs. 22,00,000 in which case the defendant in normal circumstances would never part with the possession and allow the plaintiff to chalk out a colony on the 'and with the risk of losing it.

(8) I have heard the learned counsel for the parties and carefully considered the rival contentions. The contention of the learned counsels for the defendant cannot be accepted, for the reason that in addition to recital in the agreement to sell that the possession stands delivered to the plaintiff immediately on signing the agreement there are various other circumstances and documents discussed above which clearly demonstrate that the possession in respect of the suit land prima facie seems to be of the plaintiff. It is no doubt true that in the last Khasra Girdawari the land has been shown to be vacant and in normal course the possession of the vacant land should go to the person who has a title over the property but that is a presumption. But in view of the circumstances aforementioned this presumption stands rebutted and she cannot be considered to be in possession of the land in dispute. In this case there have been intervening circumstances and the possession stands delivered to the plaintiff according to clause (1) of the agreement to sell itself and other circumstances aforementioned which need not be discussed again. It is no doubt true that the balance of about Rs. 22,00,000 have yet to be paid by the plaintiff to the defendant but that would be on the registration of the sale deed for -which the plaintiff has filed the present suit for specific performance. Since she had agreed to sell the land in dispute within 12 months from the date of the agreement and also received a sum of Rs. 2.38.000 at the time of entering into the agreement it is not unnatural that she has parted with the possession of the land in dispute in anticipation of the sale of the land. Keeping in view the above facts and circumstances I am prima facie of the view that the plaintiff on the basis of the agreement to sell entered into between him and the defendant has every right to file the "suit for specific performance and injunction and has a good case in his favor. Needless to say that the balance of convenience lies in favor of the plaintiff and that irreparable loss and injury would be caused to him in case the injunction is not granted. The defendant had received an amount of Rs. 2,38,000 on 9th October, 1987 and she is earning interest thereon since then. In case the plaintiff is not allowed to cultivate the land he will not only be put to a great loss of losing interest on the amount he has already paid to the defendant as advance but also of the produce of the land in dispute in case he is dispossessed.

(9) In the result the defendant is restrained from selling, alienating or otherwise encumbering the suit land in any manner whatsoever and also from interfering with the possession of the plaintiff over the suit land during the pendency of the suit. The plaintiff is also entitled to withdraw the amount of Rs. 25,000 deposited in court by the defendant in pursuance of the order dated 1st May, 1989.

(10) The view which I have expressed above is only by prima facie view and will not affect the determination of the case on merits. I.A. stands disposed of. No costs.