Delhi High Court
Manzoor Ahemad Khan vs Ms.Khurshida Khan on 27 April, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 27.4.2011
+ RSA No.128/2007
MANZOOR AHEMAD KHAN ...........Appellant
Through: None.
Versus
MS.KHURSHIDA KHAN ..........Respondent
Through: Mr.J.C.Mahendro, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
19.4.2007 which had endorsed the finding of the trial judge dated
21.7.2005 whereby the suit filed by the plaintiff Khursheeda Khan
seeking specific performance of a contract dated 11.10.1999 or in
the alternate praying for a decree of Rs.2,40,500/- had been
decreed in her favour; the court had granted a decree of
Rs.2,00,000/- in her favour along with interest @ 8% per annum.
2. Plaintiff was married to defendant no.1. Defendant no.1 had
a flat in the society of defendant no.2. Subsequent to the
marriage of the parties the plaintiff came to know that the
defendant no.1 was not a man of good character; he was already
wedded and having children. Plaintiff asked defendant no.1 to
transfer the flat which he had with the defendant no.2 society in
her name and for the said purpose she paid a consideration of
Rs.2,00,000/- to defendant no.1; Rs.1,00,000/- was taken as loan
from Mohd. Akhtar and remaining amount of Rs.1,00,000/- was
collected from relatives and friends to pay the sum of
Rs.2,00,000/- to defendant no.1. The said amount was paid on
11.10.1999 on which date the agreement to sell qua the suit
property i.e.the flat No.Z-104, first floor of B-Category of
defendant No.2 Society was executed in favour of the plaintiff;
affidavit and receipt of the same date were also executed. Since
the defendant had not handed over the possession of the flat the
present suit was filed.
3. Both the defendants had filed separate written statement;
suit was contested. Contention of defendant no.2 was that
defendant no.1 was yet to make full payment of the of the flat
which had been allotted to him and the possession of the flat has
not been delivered by defendant no.2 to defendant no.1; dispute
before the Delhi Co-operative Tribunal was pending inter se
between defendant nos.1 and 2.
4. Defendant no.1 denied that there was any agreement with
the plaintiff and himself to transfer the flat in favour of the
plaintiff. His contention was that the agreement to sell dated
11.10.1999 is forged and fabricated.
5. From the pleadings of the parties, eight issues were framed.
Two witnesses were examined on behalf of the plaintiff and two
witnesses were examined in defence. Court was of the view that
since the society itself had not allotted the flat to defendant no.1,
the question of honouring the agreement to sell did not arise;
defendant no.1 did not have capacity to transfer this flat in favour
of the plaintiff. However, the court was of the view that the sum
of Rs.2,00,000/- paid by plaintiff to defendant no.1 was liable to be
returned along with interest. Suit was accordingly decreed in the
aforenoted amount of Rs.2,00,000/- along with interest @ 8% per
annum.
6. This finding was endorsed in the first appeal.
7. This is a second appeal. It has been admitted and on
07.4.2008 the following substantial question of law were
formulated:
i. Whether the finding pertaining to Ex.PW-2/1 to Ex.PW2/4
is based on no evidence?
ii. Whether the plaintiff successfully discharged the onus of
proving that the appellant agreed to sell the suit property
to her and in relation to the sale executed Ex.PW1/1 to
Ex.PW1/4?
8. None has appeared for the appellant. Matter has remained
on Board. Counsel for the appellant Mr.S.K.Bhalla had been
informed but he has not cared to appear. None has appeared for
the respondent also.
9. The agreement to sell had been proved as Ex.PW-2/2; the
receipt was proved as Ex.PW-2/3 and GPA had been proved as
Ex.PW-2/1; affidavit had been proved as Ex.PW-2/4. The
documents were dated 11.10.1999. On 27.2.2003 defendant in
the course of the admission/denial of the documents had admitted
the execution of the affidavit and the agreement to sell; he had,
however, denied his signatures on the receipt and on the GPA.
Court had relied upon the agreement; it being an admitted
document the suit of the plaintiff was decreed. This is clearly not
the case of no evidence.
10. The second substantial question of law is predicated on the
documents Ex.PW-1/1 to Ex.PW-1/4. Record shows that there are
no such documents.
11. The concurrent findings of fact cannot be interfered with
unless and until a perversity is pointed out. The impugned
judgment cannot in any manner be termed to be perverse. No
interference is called for. There is no merit in the appeal.
Dismissed.
INDERMEET KAUR, J.
APRIL 27, 2011
nandan
