DHIAN SINGH Vs. TARA CHAND

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the 6th Additional District Judge. Saharanpur dt. May 4, 1978.

(2.) The allegations of the plaintiff are that on Aug. 25, 1971 the defendant No. 1 entered into an agreement with him in writing for transfer by sale of the land specified at the foot of the plaint for a consideration of Rupees 12,000/- only. Of this a sum of Rupees 6,000/- was paid by the petitioner as earnest money to the defendant No. 1 on the date when the agreement was entered into and the balance was to be paid upon the deed of sale being registered. It was stipulated also that the sale had to be executed within Aug. 24, 1977 (sic). The plaintiff had been ready and willing to perform his part of the contract. On Mar. 1, 1972 he also gave a notice under registered cover to the defendant No. 1 asking him to come over to the office of the Sub-Registrar, Deoband on Mar. 9, 1972 to execute the sale on receipt of the balance of the sale consideration. The defendant No. 1, however, did not turn up. The suit was instituted thereafter on Mar. 13, 1972 by the plaintiff claiming relief of specific performance of the said agreement. During the pendency of the suit before the trial court, the defendant No. 1 executed a deed of sale in favour of the defendant No. 2 in respect of this land on Dec. 13. 1973. The plaint was thereupon amended by the plaintiff by application dated Feb. 16, 1974. The relief claimed was modified. The defendant No. 2 was also required to join in the execution of the deed of sale in plaintiff's favour and in the alternative claim was made for refund of the sum of Rs. 6,000/-.

(3.) In defence, it was pleaded that there had been no agreement entered into by the defendant No. 1 with the plaintiff on August 25, 1971. On January 10, 1971, it was asserted, the defendant No. 1 had agreed instead to sell this land to the defendant No. 2 for consideration of Rs. 20,000/- of which Rs. 7,000/- were received on that date as earnest. Upon receipt of the balance amount he executed the deed of sale in favour of the defendant No. 2 on Dec. 13, 1973. The defendant No. 2 moreover, claimed to be a bona fide purchaser for value without notice and it was also asserted that the plaintiff has not been ready and willing to perform his part of contract.