PHOOL KAUR Vs. SARDAR SINGH

JUDGEMENT

(1.) This is an application filed by the appellants for impleadment of the legal representatives of Sardar Singh, who died during the pendency of the appeal. An attempt was made by the learned counsel for the respondents No.1 and 2 to contend that the appeal has abated on account of the legal representatives of Sardar Singh not having been brought on record. In view of the fact, however, that one of the legal representatives of Sardar Singh, namely, Ishwar Singh is on the record, the appeal cannot be said to have abated. It has been so held by the Supreme Court in Mahabir Prasad vs. Jage Ram and Ors., 1971 AIR(SC) 742 and by a Division Bench of this Court in Kedar Nath & Anr. vs. Smt. Mohani Devi & Ors., 1972 2 ILR(Del) 936.

(2.) The facts as asserted in the plaint filed by the respondents No.1 and 2 are that Smt. Khazani (now deceased) represented by Chandan Singh and others was inter alia in possession of the land comprised in Khasra Nos.485/1 (4 big. 8 bis.), 553 (8-18), 728 (0-17), 827 (0-11), 830 (2-3), 1332 (3-19), 1336 (1-1), 1572 (1-9), 1825 (1-6), 1919/2 (0-12), 2011 (3-3), 2936/1920 (1-6), 3285/2614 (0-11), total 30 bighas 4 biswas situated in village Bijwasan and Khasra No.18/13 (4-9), 18/1 (2-12) measuring 7 bighas 1 biswa situated in village Salhapur, total 37 bighas and 5 biswas and a residential house and a Ghaiwer (enclosure) situated in the abadi of village Bijwasan, Delhi. By an agreement dated 25.06.1973, Smt. Khazani agreed to sell and the respondents No.1 and 2 agreed to purchase the said land for a consideration of ' 60,000/- on the terms and conditions mentioned therein. The respondents No.1 and 2 paid a sum of ' 1,000/- as earnest money to Smt. Khazani at the time of the execution of the agreement dated 25.06.1973. A receipt in the sum of ' 1,000/- dated 25.06.1973 was also executed by Smt. Khazani in favour of the respondents No.1 and 2 by affixing her thumb impression on the same (Exhibit PW-3/2). The balance sale price was agreed to be paid to the vendor on the execution and registration of the sale deed before the Sub-Registrar. The Sale Deed was to be executed within one month after Smt. Khazani had obtained a 'No Objection Certificate' from the Competent Authority. It was further agreed that in case the sale deed was not executed within one month after getting the 'No Objection Certificate', the respondents No.1 and 2 could get the sale deed executed through a court of law at the expense of the vendor, Smt. Khazani. However, if the respondents No.1 and 2 did not purchase the land, the earnest money would stand forfeited.

(3.) On 26.06.1973, Smt. Khazani represented to the respondents No.1 and 2 that she was badly in need of ' 55,000/- and she requested that the respondents No.1 and 2 pay the aforesaid amount to her. On the same day, i.e., on 26.06.1973, Smt. Khazani executed an Agreement to surrender the cultivation and possession of the land in question, being Exhibit PW-3/3, wherein she stated that she had received ' 1,000/- as earnest money from the purchasers, who had paid ' 55,000/- as part payment, the receipt of which had been issued and the possession of the vacant land had ben handed over to the purchasers, namely, Sardar Singh and Ishwar Singh (the respondents No.1 and 2 herein) and in future the purchasers will be entitled to cultivate the land. A receipt was also executed by her dated 26.06.1973, which was thumb marked by her and is placed on record as Exhibit PW-3/4.