BIJEY SINGH Vs. BHAWANI SINGH

JUDGEMENT

(1.) THE appeal first mentioned was filed by the plaintiffs and the other appeal by the defendants, each in a different suit. The former arose out of suit No. 2227 of 1946 of the Court of Munsif, meerut, for specific performance of a contract of sale dated 4-4-1946, and in the alternative for recovery of us. 3600 together with interest in circumstances to be hereinafter mentioned. The latter arose out of suit No. 83 of 1947 of the same Court filed by Bhawani Singh, defendant 1, of the earlier suit against the plaintiffs, Bijai Singh and others, of that suit for an injunction restraining the latter from interfering with the possession of the former.

(2.) ON 4-8-1943, the property in dispute was sold by its owner Chatersen to one Harbal and others for Rs. 7,200. The case of the plaintiffs in the earlier suit was that they and defendant 2, Run singh, wanted the property for themselves, and therefore, had a suit filed for pre-emption ostensibly in the name of defendant 1, Bhawani Singh, they and defendant 2 being the real pre-emptors. That suit was decreed on 13-2-1946 on payment of the entire sale-consideration of rs. 7,200, one half of which was alleged to have been deposited in Court by the plaintiffs and the other half by defendant 2.

(3.) THESE plaintiffs further alleged that in token of his undertaking to transfer the property to them and defendant 2, defendant l executed a deed of agreement on 4-4-1946 to the effect that, after mutation of his name as the owner of the property, he (defendant l) would convey the same to the plaintiff's and defendant 2. Suit no. 2227 of 194. 6 was for the specific performance of this very agreement. Along with this, a promissory note was also executed by defendant l in favour of the plaintiff's and defendant 2, acknowledging his liability to re-pay the amount of Rs. 7200 to those persons. In the deed of agreement just mentioned and also in this promissory note the advance of this amount by the plaintiff and defendant 2 to defendant 1 was mentioned as a loan pure and simple, though made with the object of enabling defendant 1 to deposit the amount in Court as the pre-emption money under the decree dated 13-2-1946 aforesaid. It is said by the plaintiffs-appellants that, while defendant l did transfer a half share in the property to defendant 2, he refused to make a transfer of the remaining share to the plaintiffs and that, aggrieved by this refusal, the latter had to bring the suit out of which the first mentioned appeal has arisen. Neither the alleged sale-deed nor a certified copy of it was filed, so as to enable this Court to come to a definite finding that there was in fact a sale of half a share by defendant l in favour of defendant 2. The question whether such a sale ever took place was itself of some importance, because a particular argument was addressed to us by the learned counsel for the plaintiffs-appellants on the assumption that it had actually taken place.