NAHAR SINGH Vs. RAMDUTT

JUDGEMENT

(1.) Plaintiff filed a suit for specific performance of contract which was numbered as Suit No. 49 of 1978, Nahar Singh v. Moola and others. That suit was contested by the defendants and upon considering the materials on record, the learned trial court decreed the suit. The contesting defendants preferred an appeal which was numbered as Civil Appeal No. 423 of 1981. That appeal was partly allowed by the IInd Additional District Judge, Ghaziabad.

(2.) Being aggrieved by the Judgment and decree passed by the Additional District Judge, Ghaziabad in Civil Appeal No, 423 of 1981, plaintiff as appellant has preferred this appeal.

(3.) Plaintiff-defendant No. 1 executed a registered agreement to sell on accepting of consideration money on 29.12.1977. Plaintiff was also willing to perform his part of the contract but the defendants did not execute any document on acceptance of balance sum, so the plaintiff sent a registered notice on 15.2.1978 to the defendants. The said notice was refused by Moola on 16.2.78. The plaintiff filed the present suit on 17.2.78 against Moola for relief in the nature for decree of specific performance to execute the sale deed in plaintiffs favour in respect of the disputed land. On 17.2.1978 the prayer of the plaintiff, the learned Additional Civil Judge, Ghaziabad passed injunction order restraining Moola-defendant No. 1 from transferring the disputed property to any other person till the disposal of the suit. On 18.2.78, the aforesaid injunction order and the notice was served upon the defendant No. 1 in presence of the witnesses. The plaintiff also sent the registered notice to Ram Sahai, Gopi Chand and Bahoru to other defendants according to the aforesaid injunction order granted by the trial court but they refused to accept the notice on 24.2.78. They have also knowledge of the registered agreement for sale dated 29.12.1977, executed by defendant No. 1 in favour of the plaintiff. They also knew about the pendency of the present suit filed by the plaintiff for specific performance of contract on the basis of the agreement for sale dated 29.12.1977. Inspite of the aforesaid injunction order dated 17.2.1978, which was subsisting, the defendant No. 1 sold the disputed property to defendant Nos. 2 to 12. On 1.3.1978, the learned trial court directed the plaintiff to implead the defendant No. 1 who was transferee of the disputed land during the pendency of the suit and he was made a party. In proceedings under Section 145, Cr. P.C, a preliminary order was passed by the S.D.M. on 27.6.78 and vide his order dated 21,2.79 he declared that defendant Nos. 2 to 12 were in possession on the basis of the registered agreement to sell dated 1.3.78. During the pendency of the case, defendant No. 1 died leaving behind Ramphal and others, respondent Nos. 1 to 5 as heirs. On 29.10.1981, the trial court decreed the suit. The heirs of the defendant No. 1. i.e., defendant Nos. 1/1 to 1/5 did not prefer any appeal. Earlier an appeal was preferred by the defendants wherein the Hon'ble Court sent back to the District Courts as the valuation was less than Rs. one lac. On 15.9.93, the Additional District Judge on wrong conception of facts and law, allowed the appeal and, set aside the Judgment and decree passed by the learned trial court.