NARDEV SINGH Vs. MAHABIR SINGH

JUDGEMENT

(1.) Heard Sri K.K. Arora, learned counsel for the appellants and Sri Sankatha Rai, learned counsel for the respondents.

(2.) This second appeal arises out of the judgment and decree dated 21.4.1980 passed by 1st Additional District Judge, Bijnor in Civil Appeal No.49 of 1979, Nardeo Singh & others Vs. Mahabir Singh and another confirming the judgment and order dated 28.2.1979 passed by the Additional Civil Judge, Bijnor in Original Suit No. 2 of 1975, Mahabir Singh Vs. Bau Ram and others.

(3.) The facts of the case in brief are that Mahabir Singh - plaintiff, (respondent no. 1 to the appeal) (hereinafter referred to as the plaintiff) filed Original Suit No. 2 of 1975 for the relief of specific performance of contract on the basis of an unregistered agreement for sale dated 12.8.1974 against Babu Ram-original tenure holder (defendant no. 1 to the plaint and respondent no. 2 to the second appeal) (hereinafter referred to as the defendant no. 1), of plot no. 90 area admeasuring 5 Bigha 7 Biswa 10 Dhur, situated in village Bakaina, Pargana Basta, District Bijnor. The said agreement for sale was executed by Babu Ram in favour of Mahabir Singh-plaintiff - respondent for a sale consideration of Rs. 20,000/- out of which an amount of Rs. 15,000/- was paid as earnest money in advance at the time of execution of the agreement for sale and the remaining balance amount of Rs. 5,000/- was agreed to be paid at the time of execution of the sale dead which was to be got executed by the plaintiff-respondent by 12.12.1974. On 12.8.1974 Babu Ram-defendant no. 1, the original tenure holder deposited twenty times of the land revenue and became bhumidhar of the land in dispute. Since Babu Ram- defendant no. 1 evaded execution of the agreement to sell insite of plaintiffs repeated request, he sent a registered legal notice dated 7.11.1974 through counsel informing him to appear before Sub Registrar, Chandpur on 10.12.1974 for executing the sale deed. Despite notice Babu Ram did not appear in the office of the Sub Registrar, Chandpur, Whereas the plaintiff was present there and he filed an application before the Sub Registrar regarding his presence. Thereafter on 1.1.1975 the plaintiff-respondent filed Original Suit No. 2 of 1975- Mahabir Singh Vs. Babu Ram and others in the court of Civil Judge, Bijnor seeking relief of specific performance of contract for directing Babu Ram to execute sale deed in his favour after receiving the balance amount of Rs. 5000/- in terms of the agreement for sale. An alternative relief of recovery of the earnest money of Rs. 15,000/- along with interest was also sought for. Since, during the tendency of the original suit Babu Ram-defendant no. 1 executed a registered sale deed on 31.3.1975 in favour of Nardev Singh and others (appellants to the second appeal), they were impleaded as defendants no. 2 to 6 in the original suit on plaintiffs application.