MOHD. SHAKOOR Vs. CHHEDI KOERI AND OTHERS

JUDGEMENT

(1.) - This second appeal was filed by the plaintiff Mohd. Shakoor, now deceased represented by his legal heirs and representatives already on record, against the judgment and decree dated 22nd March, 1975 passed by the Civil Judge, Jaunpur reversing the judgment and decree of the trial Court.

(2.) The plaintiff had filed the suit for specific performance of contract for sale dated 8.10.1969 and in alternative he has prayed for possession over the property in suit. A relief for prohibitory injunction against the defendant was also claimed. It was pleaded that the defendant No. 1 was bhumidhar of the plot No. 36 area 13 dicemal, who was in the need of the money. He had agreed to sell 10 dicemal out of the said plot for a sum of Rs. 3,500.00. The agreement was reduced into writing and Rs. 500 were paid by the plaintiff to the defendant No. 1 as earnest money. It was also claimed that possession was also delivered over the land in suit by defendant No. 1, the sale deed was to be executed within two months from the date of agreement. The plaintiff requested to execute the sale deed; his favour, but the defendant No. 1 failed to do so instead executed a sale deed dated 27.10.1969 in favour of the defendant No. 2 Smt. Saira Bibi. It was pleaded, that the defendant No. 2 had knowledge of the agreement for sale in favour of the plaintiff in spite of that she obtained the sale deed.

(3.) The defendant No. 1 Chhedi admitted to have executed agreement for a sale deed in favour of the plaintiff for Rs. 3,500.00 and also accepted receiving Rs. 500.00 from the plaintiff as earnest money. However, he had set up a case that that it was agreed upon between the defendant No. 1 and the plaintiff that in case anybody offered a price, higher that agreed between the arties, the defendant No. 1 was free to sell the plot to such person. It is said that since the defendant No. 2 agreed to pay Rs. 4,000.00, therefore, he executed a sale deed in her favour. The defendant No. 1 wanted to return the earnest money of Rs. 500.00 to the plaintiff but he declined to receive it. It was also said that the agreement to sell between defendant Nos. 1 and 2 was entered into in presence of the plaintiff, hence the plaintiff had no right to enforce the agreement of sale in question. It was pleaded by the defendant No. 2 that the defendant No. 1 Chhedi and her husband had entered into the agreement for sale of the plot in question for a sum of Rs. 4,000.00. Rs. 300.00 was paid by the husband of the defendant No. 1 as earnest money. Certain persons, who were enimical to the defendant No. 2 had moved applications before the District Magistrate with false allegation that the defendant No. 2's husband had forcibly obtained the thumb impression of the defendant No. 1 with a view to forge the agreement for sale. It is not disputed that on 27.10.1969 defendant No. 1 executed a sale deed in favour of the defendant No. 2 after accepting the balance of Rs. 3,700.00. She pleaded that she was bona fide transferee. it was pleaded that the agreement to sell in favour of the plaintiff was forged and fictitious, not liable to be specifically enforced.