Manzoor Ahemad Khan vs Ms. Khurshida Khan

Indermeet Kaur, J.—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.

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.

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.

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.

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.

This finding was endorsed in the first appeal.

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?

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.

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.

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.

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.