Krishna Devi v. Kartar Singh Bidhuri

RAJIV SAHAI ENDLAW, J. JULY 12, 2018 'pp'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 12th July, 2018 + RSA 266/2017 KRISHNA DEVI ..... Appellant Through: Ms. Seema Singh, Adv. Versus KARTAR SINGH BIDHURI ..... Respondent Through: Mr. Shekhar Dasi, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 2nd February, 2017 in RCA No.8718/2016 (Case ID No.DLST010000292012) of the Court of Additional District Judge-05, South District, Saket Courts, New Delhi] of dismissal of First Appeal under Section 96 of the CPC filed by the appellant against the judgment and decree [dated 7th March, 2012 in Suit No.344/2012 of the Court of Civil Judge-06 (West),Tis Hazari Courts, Delhi] of specific performance of an Agreement of Sale of immovable property, in favour of the respondent / plaintiff and against the appellant / defendant. 2. This appeal came up first before this Court on 22nd November, 2017 when, without indicating as to what substantial question of law arises, notice thereof was ordered to be issued and the Trial Court record requisitioned. 3. The counsel for the respondent has been appearing. The counsel for the appellant has been heard and the Trial Court record requisitioned perused. 4. The Second Appeal being against consistent judgments / decrees, of the Suit Court and the First Appellate Court, of specific performance of an Agreement to Sell of immovable property, in favour of the respondent / plaintiff, I have straightway enquired from the counsel for the appellant / defendant the substantial question of law which arises for consideration, for the Second Appeal to be entertained. 5. The counsel for the appellant / defendant has responded stating, (i) that 'mixed questions of law and fact' arise; (ii) that the version of the respondent / plaintiff that he paid the entire sale consideration at the stage of Agreement to Sell itself, is highly unbelievable; (iii) that though the Agreement to Sell in writing records that the appellant / defendant had handed over vacant peaceful physical possession of the property agreed to be sold, but the respondent / plaintiff, in the plaint claimed that possession only of one room was given at the time of Agreement to Sell and not of the remaining property; (iv) that though the Agreement to Sell is in type form but the sale consideration mentioned therein is not in type form and has been filled in hand; (v) that ordinarily, transactions of sale / purchase of immovable property are in two stages i.e. of giving of bayana/earnest money and thereafter of execution of Sale Deed and it is unbelievable that the transaction between the parties would be in one stage only; (vi) that though the Agreement to Sell, of which specific performance was claimed is worded like a Sale Deed, but is not on requisite Stamp Paper as per the consideration mentioned therein and is not registered; (vii) that the suit filed by the respondent / plaintiff from which this appeal arises, was first dismissed, but on appeal being preferred by the respondent / plaintiff, was remanded to the Suit Court; that the Suit Court, on such remand, without any fresh evidence being led before it and which was permitted to be led by the first Appellate Court while so remanding the suit, in the second round, decided in favour of the respondent / plaintiff and against the appellant / defendant; (viii) that there are numerous inconsistencies in the testimonies of the witnesses of the respondent / plaintiff; and, (ix) that no documents of Income Tax, which ought to have existed, were proved. 6. The counsel for the appellant / defendant, on enquiry whether the appellant / defendant admits her signatures on the Agreement to Sell of which specific performance has been decreed, states that though the appellant / defendant admits the signatures but it has been the plea of the appellant / defendant that her signatures were obtained on blank papers.