Heard Sri S.K. Mishra, learned counsel for the appellant as well as Sri Gopal Chandra Saxena, learned counsel for plaintiff respondent who has appeared through caveat.
This is defendants' Second appeal arising out of O.S. no.1989 of 1981. The suit for specific performance of agreement for sale dated 10.11.1980 executed by the original defendant no.1 in favour of the plaintiff was decreed by civil Judge(S.D.) Farrukhabad on 3.11.2010. Against the said decree defendant appellants filed Civil appeal no.77 of 2010 which was dismissed on 14.12.2011 by A.D.J./Special Judge(D.A.D.) Farrukhabad, hence, this Second appeal.
The case of the plaintiff respondent was that original defendant Smt. Nanhi Devi, since deceased and survived by appellants executed the agreement for sale in favour of the plaintiff for Rs.35000/- out of which Rs.12500/- were received as earnest money. The agreement for sale was executed and registered on 10.11.1980. Smt. Nanhi Devi executed sale deed of the property in dispute on 25.4.1981 (before filing of the suit) in favour of his son Atma Ram, appellant no.1 who was impleaded as defendant no.2 in the suit. In the agreement it was provided that sale deed would be executed in two years.
Regarding execution of agreement defendant no.2/appellant no.1 stated that thumb impression of his mother had been obtained on blank papers by the plaintiff. He clearly stated that the papers on which thumb impressions of her mother were obtained were blank papers and not stamp papers. In this manner thumb impression of his mother was admitted by appellant no. 1. It was further stated by appellant no.1 that the plaintiff had kidnapped original defendant no.1. However, in the written statement no such plea was taken. Coercion as defined under Section 15 of Contract Act is to be specifically pleaded. In the written statement absolutely no plea of any coercion was taken hence evidence in that regard was not admissible. Even otherwise after perusal of the evidence it was found by the courts below that no coercion was exercised. Courts below held that from the perusal of the agreement it was clear that at the time of its registration defendant no.1 was present before sub registrar. However, defendant no.2 or his sisters and father who were impleaded after the death of defendant no.1 did not say anything in that regard. Regarding coercion and kidnapping it was stated that defendant no.1 was kept in some desolated jungle area/bushes. No FIR regarding alleged kidnapping etc. was ever lodged.
The findings recorded by the courts below are basically findings of fact arrived at after taking into consideration entire material on record suffering from no error of law.
However, the fact is that suit for Specific Performance was decreed after about 30 years. The Supreme Court in Pratap Lakshman Muchandi vs. Shamlal Uddavadas Wadhwa AIR 2008 SC 1378 has held that prices of immovable property are rising very rapidly hence while decreeing the suit for Specific Performance of agreement for sale, particularly when it was executed much before, some more amount must be directed to be paid by the plaintiff to the defendant. On the suggestion of the Court made under Section 89 C.P.C. learned counsel for the respondent after consulting his client agreed for payment of Rs. 2 lacs more. However, learned counsel stated that on the land in question there was a bank loan and unpaid amount of loan along with interest was about Rs.1,07000/-. The case was adjourned to enable the learned counsel for appellant to verify this fact. Today learned counsel for appellant has also placed on record a certificate of the Bank dated 15.2.2012 stating therein that the unpaid amount is about Rs.1,07000/- (exactly 1,06990/-).
Accordingly, it is directed that within two months amount of Rs. Rs.1,07000/- (the balance loan along with interest) shall be deposited in the bank by the plaintiff and Rs.93,000/- and balance sale consideration of Rs.22,500/-, if not, already deposited shall positively be deposited before the trial court/executing court within two months. On such deposit being made the executing court shall forthwith execute the sale deed of the property in dispute in favour of the plaintiff and possession shall immediately be delivered and thereafter the balance sale consideration and the amount of Rs.93000/- shall immediately be paid to the defendants appellants. In case the loan and the interest is more than Rs.1,07000/- still the same should be cleared by the plaintiff respondent and additional amount if any shall not be adjustable in the amount of Rs.93000/- required to be deposited by the plaintiff respondent.
Accordingly, decree passed by the courts below is substantially affirmed, however, it is varied only to the extent of payment of additional amount of Rs. 2 lacs as above for which on the suggestion of the Court learned counsel for respondent has agreed.
Second appeal is accordingly disposed of/decided.
Order Date :- 16.2.2012 vkg