Mohd Zeeshan v. Mohd Tahir

1. The plaintiff has filed the present suit for specific performance of an Agreement dated 13.03.2012 and permanent injunction.

2. Summons in the suit and notice in the application were issued on 9.12.2013. Upon service counsel for the defendant entered appearance on 2.5.2014 however neither Vakalatnama was filed nor the written statement was filed. The Joint Registrar placed the matter before court on 25.07.2014. On 25.07.2014 counsel for the defendant stated that she would file her written statement along with an appropriate application. None has appeared on behalf of the defendant today. Hence it is prayed that the present suit be decreed under order VIII Rule 10 CPC.

3. The plaint is duly supported by the affidavit of plaintiff. The necessary facts, as per the plaint, are that the plaintiff is the lawful and bonafide purchaser of the property land area measuring 86 sq yards out of Khasra No. 381 and 382, bearing property No. 738, situated in the area of village 2014:DHC:4320 Mustafabad, Gali No. 10, Main 25 Futa Road, Rajiv Gandhi Nagar, New Mustafabad, Illaqa Shahdra, Delhi. The said property was purchased by the plaintiff from defendant vide an agreement dated 13.3.2012 for a total sale consideration of 92 lacs which was duly paid by the Plaintiff to the Defendant as full and final payment. A receipt dated 13.03.2012 acknowledging the payment was also issued by the Defendant.

4. As per the plaint, Late Smt Banno (wife of late Sh Nanhe) was the original owner of suit property having purchased the same from Sh Mohd Sadiq vide agreement dated 25.06.1990 and was in possession as owner till her death on 9.11.2001 and thereupon property devolved upon her legal heirs i.e. the Defendant (eldest son), Sh Tayyab, Mohd. Khalik, Sh Arif, Mohd Ashif, Aarifa and Sanno Khatoon, all having 1/7th share in the suit property.

5. It is the case of the plaintiff that at the time of entering into the agreement, defendant represented to the plaintiff that all the owners of the property have relinquished their respective shares in favor of Defendant vide Relinquishment Deed dated 17.04.2012, duly registered on 26.04.2012 being Registration No. 669 Book No. 1, Vol. No. 4404 at pages 180 to

183. Hence after receiving the full sale consideration as per the agreement dated 13.03.2012, plaintiff was put in possession of suit property excluding one shop which at the request of defendant was allowed by the plaintiff to be used by the defendant as a licensee without paying any license fee.

6. Plaint also discloses that it was mutually agreed between the plaintiff and the defendant that the plaintiff would delay the execution of the sale deed and would get the sale deed executed and registered in favor of the prospective buyer as plaintiff was on lookout for some better property and the said proposal was agreed by the defendant.

7. Further as per the plaint in the month of April 2013, Plaintiff received information that the Defendant is negotiating with several buyers in order to create third party rights in the suit property despite not being the owner of suit property as vide agreement to sell dated 13.3.2012 defendant was not left with any right or interest in the suit property. On becoming suspicious of defendant’s dishonest intention with respect to the suit property, plaintiff through his counsel sent a notice dated 22.04.2013 but defendant denied making any such attempts of sale.

8. Plaint further discloses that on 29.9.2013, plaintiff came to know that in his absence, defendant accompanied by a few prospective property dealers inspected the suit property. In view of the illegal and dishonest intentions of the defendant, the plaintiff requested the defendant to execute the sale deed in favor of the plaintiff and complete the sale formalities but the defendant delayed the execution of the sale deed in favor of the plaintiff.

9. Counsel for the plaintiff submits that the entire sale consideration of Rs 92 lacs stands paid by the plaintiff to the defendant and a receipt dated 13.3.2012 was issued by defendant and further the plaintiff was put in possession of the shop in question. Counsel for the plaintiff also prays that the defendant be restrained from selling, alienating, or creating any third party rights in the suit property.

10. I have heard counsel for the plaintiff and also perused the present plaint which is duly supported by the affidavit of the plaintiff and the documents filed along with the plaint. The agreement to sell along with the receipts placed on record shows that the plaintiff has paid the entire sale consideration of Rs 92 lacs to the defendant and plaintiff was put in possession and occupation of the suit property.

11. For the reasons stated above and the fact that despite opportunity having been granted to the defendant to file the Written Statement, no written statement has been filed, this is a fit case to pass a decree under order VIII Rule 10 CPC. Accordingly the order dated 25.07.2014 is confirmed and the suit is decreed in favor of plaintiff and against defendant. The defendant shall execute the sale deed in favour of the plaintiff within four weeks from the date of receipt of the order, failing which the plaintiff shall be entitled to file execution.

12. Decree sheet be drawn up accordingly.

JUDGE SPTEMBER 01, 2014 ssn /pdf