KALYAN SINGH AND OTHERS Vs. SANJEEV SINGH

JUDGEMENT

(1.) This First Appeal under Section 96 of CPC has been filed against the judgment and decree dated 28/11/2002, passed by Additional District Judge, Dabra, District Gwalior in Civil Suit No.1/2000, by which the suit for declaration of title and specific performance of contract filed by the respondent/plaintiff has been decreed.

(2.) The necessary facts for the disposal of the present appeal in short are that defendant No.1/appellant No.1 Kalyan Singh is the owner of the plot ad-measuring 900 sq. ft. situated in Ward No.16, Shiv Colony, Dabra, District Gwalior (for brevity, this property shall be referred as the ''disputed property''). The ''disputed property'' is a part of survey no.1850/1 and there is a 10 feet wide road on the East, whereas there is a boundary wall of Sugar Mill on the West. On the North side, house of one Baljeet is situated, whereas on the South side, boundary wall of Sugar Mill is situated. It was pleaded that since this plot was situated near the house of the plaintiff/respondent and the plaintiff/ respondent was using the said plot for the last 15 years for tying his cattle, therefore, he was in possession thereof. On 29/11/1999, the defendant No.1/ appellant No.1 executed an agreement to sell in favour of the plaintiff/ respondent for a consideration amount of Rs.62,000/-. At the time of execution of agreement to sell, an amount of Rs.15,000/- was paid by the plaintiff/ respondent by way of advance and the remaining amount of Rs.40,000/- was agreed to be paid at the time of execution of the sale deed. In the agreement to sell itself, the defendant No.1/ appellant No.1 had admitted that the said plot is in possession of the plaintiff/ respondent. As per the agreement to sell, it was agreed upon by the parties that the sale deed shall be executed by 30/06/2000 and the plaintiff would bear the registry expenses. It was pleaded that the plaintiff and the defendants No.2 to 5 are the neighbourers. The defendants No.2 to 5 are the members of the same family and, therefore, the plaintiff had given then an information about the execution of agreement to sell with the defendant No.1/ appellant No.1 and, thus, the defendants No.2 to 5 were aware of the fact that the plaintiff has entered into an agreement to purchase the disputed property. It was further pleaded that as per the agreement to sell, it was agreed upon between the parties that the sale deed shall be executed by 30/06/2000, but even prior to that, the defendant No.1 dishonestly with an intention to cause loss to the plaintiff/respondent, executed a registered sale deed in favour of the defendant No.2/appellant No.2 on 25/02/2000, whereas the said document was nothing but a sham document. Thus, it was pleaded that after executing an agreement to sell in favour of the plaintiff/ respondent, the defendant No.1/ appellant No.1 had no right or title to sell the disputed property to the defendant No.2/appellant No. Since the sale deed is without any right, therefore, the defendant No.2/ appellant No.2 does not get any title or possession over the disputed property. The plaintiff/ respondent, as per agreement to sell, was always ready and willing to perform his part of contract and even till today, he is ready and willing to do so. It was further pleaded that prior to expiry of the date fixed for execution of sale deed in the agreement to sell, the appellant No.1/ defendant No.1 had no right or title to execute the sale deed in favour of the appellant No.2/defendant No. Even otherwise, if he was in urgent need of money, then he could have issued a notice to the plaintiff/ respondent and if the appellant No.1/ defendant No.1 had expressed the need of money and had insisted for immediate execution of sale deed, then the plaintiff/ respondent would have got the sale deed executed even prior in time. It was further pleaded that the defendants No.2 to 5 are aware of the fact that the plaintiff/ respondent is in possession of the plot, but still with an intention to cause irreparable loss to the plaintif/respondent, the defendant No.2/ appellant No.2 has got the sale deed executed in his favour. It was further pleaded that the plaintiff/respondent is still in possession of the plot in dispute and is using the same for tying his cattle. It was further pleaded that on 29/02/2000, the defendants No.2 to 5 informed the plaintiff/respondent that since the defendant No.2 has purchased the plot, therefore, now the plaintiff should stop tying the cattle on the said plot and now, the appellant No.2/ defendant No.2 would raise a construction over the plot. The plaintiff, thereafter, collected an information from the Office of Sub-Registrar, Dabra, District Gwalior and came to know that the defendant No.1/appellant No.1 has executed a registered sale deed on 25/02/2000 in favour of the appellant No.2/ defendant No. It was further pleaded that the defendants No.2 to 5 with an intention to raise construction over the land in dispute, have started collecting building materials on 01/3/2000, whereas they do not have any right or title to interfere with the possession of the plaintiff nor they have any right or title to raise construction over the disputed property. Accordingly, the plaintiff filed a suit for declaration of title and specific performance of contract as well as permanent injunction.

(3.) During pendency of the suit, it appears that an application under Order 6 Rule 17 CPC was filed by the plaintiff/respondent seeking amendment in the plaint. The said application was allowed by the trial Court by order dated 23/06/2000. By this amendment, it was once again incorporated by the plaintiff/ respondent that as per the agreement to sell dated 29/11/1999, the plaintiff/ respondent is still ready and willing to perform his part of contract after making payment of outstanding amount and he would remain ready and willing in future also. It was further pleaded that on 21/01/2000, the defendant No.1/ appellant No.1 had given an assurance to the plaintiff that he would execute the sale deed in his favour, but as the defendant No.1 was getting a higher consideration amount, therefore, he has executed the sale deed in favour of defendant No.2/ appellant No.2 which is void.