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6. The plaintiff has filed a rejoinder to the written statement wherein apart from reiterating what has been stated in the plaint the plaintiff contends that in the judgment passed in O.S.No.3193/2018 while dismissing the suit the Court has recorded particular findings that the sale executed by BDA in favour of the defendant with respect to the marginal land i.e., suit schedule property is a bogus document and as per the survey report the marginal land is in the possession of BWSSB whose property is situated next to the marginal land and that BDA without proper verification has executed a bogus sale deed and that there is judicial findings recorded to the effect that defendant has no right over the schedule marginal land and defendant is not in possession of the schedule property. It is submitted that the judgment passed in O.S.No.3193/2018 carrying the above said findings has reached finality as no appeal is preferred by the defendant against the said judgment and therefore the defendant is liable to refund the advance sale consideration with interest as prayed.

11. ISSUE NO.1:- The defendant offering the schedule marginal property for sale and plaintiff agreeing to purchase the same under the agreement of sale dated 20.12.2016 for a total sale consideration of Rs.3,42,00,000/- and the plaintiff paying advance sale consideration of Rs.1,00,00,000/- which is paid in two installments of Rs.50,00,000/- one through RTGS and another through cheque is not in dispute. It is the specific contention of the plaintiff that the defendant without having any title over the schedule marginal land misrepresented the plaintiff to believe that he is ownership and possession of the schedule property and made the plaintiff to enter into the agreement by paying a huge advance consideration of Rs.1,00,00,000/-. Per contra the defendant would contend that as on the date of agreement he was in actual possession and enjoyment of the schedule marginal land and it is the plaintiff who did not come forward to get the sale deed executed and it is the plaintiff who has defaulted in performing his part of the contract. In response the plaintiff counsel would vehemently submit that as per the findings recorded by the Court in O.S.No.3193/2018 the defendant has no possession over the schedule marginal land and the schedule property does not belong to the defendant at all and it is in actual ownership possession of the BWSSB whose property is situated abutting the schedule property. The court has also recorded a finding that sale deed executed by BDA in favour of the defendant is a bogus document as neither the defendant nor his vendors had any right over the schedule marginal land.

15. The plaintiff contends that it was made to believe by the defendant that the schedule marginal land which is abutting the major portion of the land that was earlier purchased was free from all encumbrances and the defendant was only required to obtain the sale deed from BDA and after obtaining the same he would execute a sale deed in favour of the plaintiff. Admittedly till 22.06.2017 the defendant had not obtained sale deed from BDA to sell the schedule marginal land to the plaintiff. Though the defendant had represented to the plaintiff that it is in possession of the schedule marginal land the documentary evidence on record speaks to the contrary that there is no iota of evidence before the Court to substantiate that the possession of the marginal land was with defendant even though he has not obtained sale deed from BDA.

17. From the above observations made in the judgment which as on today having reached finality it is abundantly clear that the defendant neither had the title nor possession over the suit schedule marginal land and it is abundantly clear that the defendant has misrepresented the plaintiff that he is having possession over the schedule marginal land. In fact the sale deed which is produced at Ex.D.5 no where speaks about the possession of the marginal land being handed over to the defendant by BDA. The existence of the property of BWSSB abutting the marginal land is categorically brought out in the evidence of D.W.1 in his cross-examination. Therefore it can be held without hesitation that as on the date of entering into the agreement of sale dated 20.12.2016 the defendant neither had title nor possession over the marginal land and therefore it is the defendant who has committed breach of the condition of the agreement of sale.