GIAN SINGH Vs. HARBANS SINGH

JUDGEMENT

(1.) Gian Singh, Dhian Singh, sons of Sampuran Singh, Ranjit Singh son of Jagir Singh and Fateh Singh son of Ajit Singh (defendants in the trial Court) have filed the present R.S.A. and it has been directed against the judgment and decree dated 1.10.1999 passed by additional District Judge, Amritsar, who allowed the appeal for Harbans Singh and Jagir Singh plaintiffs by setting aside the judgment and decree dated 13.12.1994 passed by the trial Court and a decree for specific performance of agreement of sale Ex. P1 with respect to the suit land was passed in favour of the plaintiffs and against the defendants with costs and directions were given by the first Appellate Court that the plaintiffs would deposit the remaining sale consideration in Court within three months from the date of the decision of the appeal i.e. 1.10.1999, failing which their suit shall stand dismissed.

(2.) Some facts can be noticed in the following manner:- Harbans Singh son of Bhagwan Singh and Jagir Singh son of Sunder Singh filed a suit for possession by way of specific performance of agreement of sale dated 30.12.1991 with respect to the land measuring 23 kanals 10 marlas situated in village Talwandi Sohba Singh, Tehsil Patti, District Amritsar as per jamabandi for the year 1987-88 on payment of Rs.30,250/-. They have prayed for the delivery of possession. In the alternative, the plaintiffs have prayed for a decree for specific performance of agreement to sell dated 30.12.1991 regarding land measuring 23 kanals 10 marlas of Thur/Khuh quality situated at Majha but of 60 kanals 2-1/3 marlas which forms l/3rd share of 180 kanals 7 marlas of the land situated in village Talwandi Sobha Singh, Tehsil Patti, District Amritsar in their favour. The plaintiffs also prayed for permanent injunction restraining defendant No. 1 Harbhajan Singh from alienating the land measuring 23 kanals 10 marlas bearing Khata No.265/755, Mushtif and Killa Nos. 74/3, 4,7,8,13 situated in village Sobha Singh, Tehsil Patti as per jamabandi for the year 1987-88. Further the plaintiffs claimed in the alternative a money decree for a sum of Rs.10,000/-, i.e. Rs. 5.000/- as earnest money and Rs.5,000/- as damages, on the basis of agreement dated 30.12.1991.

(3.) The case set up by the plaintiffs before the trial Court was that the land in question was owned and possessed by Harbhajan Singh, defendant No. 1 and he agreed to sell the same to the plaintiffs vide agreement to sell dated 30.12.1991 and received a sum of Rs.5,000/- by way of earnest money. The land in suit was agreed to be sold at the rate of Rs. 12,000/ - per killa and the sale deed was agreed to be executed on or before 10.1.1992 on receipt of the remaining sale consideration from the plaintiffs. It was also agreed that if defendant No. 1 failed to execute the sale deed, he shall be Rs.5,000/- more as damages to the plaintiffs plus Rs.5,000/- received as earnest money and in case plaintiffs committed any breach of the agreement, their amount of earnest money shall stand forfeited. It was also agreed that the entire registration expenses were to be borne by the plaintiffs. After execution of the agreement to sell in question, defendant No. 1 delivered the possession of the suit land to the plaintiffs. Plaintiffs further pleaded that defendants No. 2 to 5 namely Gian Singh, Dhian Singh and Ranjit Singh respectively alleged that they got the sale deed dated 3.1.1992 executed in their favour from the defendant No. 1. The plaintiffs challenged the execution, validity and existence of the said sale deed and pleaded that the said sale deed is a paper transaction executed simply to defeat their rights and the same is barred by the principle of lis pendens as provided under Section 52 of the Transfer of Property Act. Defendants No.2 to 5 had the knowledge of the agreement of sale dated 30.12.1991 as the plaintiffs had moved application before the Sub-Registrar on the date of execution of alleged sale deed in their favour. A copy of the stay order dated 3.1.1992 passed by the Court was also shown to the Sub-Registrar, Patti, but inspite of the same the Sub-Registrar had executed the sale deed. Therefore, defendants No. 2 to 5 were not bona fide purchasers of the suit land. The plaintiffs further pleaded that defendants No. 6 to 23 alleged themselves to be co-sharers and transferees in the suit land. Plaintiffs pleaded that defendant No. 1 also agreed to sell the land measuring 23 kanals 10 marlas which was of Thur/Khuh quality situated in Majha in village Talwandi Sobha Singh, Tehsil Patti, District Amritsar out of the land measuring 60 kanals 2-1/3 marlas which forms 1/3 share of the land measuring 180 kanals 7 marlas fully detailed in the head note of the plaint as per jamabandi for the year 1987-88 of village Talwandi Sobha Singh, Tehsil Patti, District Amritsar. The plaintiffs further pleaded that they were always ready and willing to get the sale deed executed and registered in their favour from the defendant No. 1 after paying the remaining sale consideration, but the defendant No. 1 was not ready to do so. The plaintiffs are in possession of the suit land as prospective vendees. They moved the application before the Sub Registrar on 1.1.1992 and got marked their presence. In this way, defendant No.1 committed a breach of agreement with the plaintiffs and thus the plaintiffs are entitled for specific performance of the agreement of sale in question. The suit was contested by defendants No. 2 to 5. They took preliminary objections that the suit is not maintainable in the present form; that the suit is not properly valued for the purposes of court fee and jurisdiction and that the suit is bad for non-joinder of necessary parties. On merits, they pleaded that defendant No. 1 had sold the land measuring 24 kanals in their favour for consideration of Rs.30,000/ - on 3.1.1992 and they purchased the land after due enquiry and thus they are protected under Section 41 of the Transfer of Property Act. They pleaded that they are in possession of the suit land since the date of its purchase. The execution and registration of agreement dated 30.12.1991 relied upon by the plaintiffs was denied. They also denied all other averments in the plaint and prayed for the dismissal of the suit. Defendant No. 23 also filed separate written statement pleading that he was a bonefide mortgagee. Plaintiffs filed replication to the written statement of defendants No. 2 to 5 in which they reiterated their allegations made in the plaint by denying those of the written statement.