SHER SINGH Vs. RAJINDER SINGH

JUDGEMENT

(1.) Rajinder Singh Plaintiff (respondent-herein) filed suit for possession through specific performance of this agreement of sale dated 10.1.1973 qua 1/2 share (9 Biswas) out of abadi plot measuring 18 biswas as described in the head note of the plaint situated in village Kot Gangu Rai Tehsil and District Ludhiana bearing Khewat No.26 khatuni No.35, Khasra No.404, measuring 1 kanal 9 marlas per jamabandi for the year 1969-70 alleged to have been executed by Sher Singh defendant (appellant-herein) in his favour for total consideration of Rs. 4,000/- minus Rs. 1,400/- received by him as earnest, money on the date of its execution. It was also prayed that in case the Court found that Sher Singh had less share in the said abadi plot than nine Biswas, decree for possession through specific performance be passed in his favour qua that much area on payment of proportionate sale price; in the alternative, it was prayed that decree for the refund of Rs. 1,400/- paid as earnest money plus another Rs. 1,400/- as damages and interest thereon at the rate of 18 per cent per annum from 10.1.1973 to the date of the suit and future interest at the said rate till realisation be passed. It was alleged in the plaint that it was represented to him by Sher Singh and Basta Singh defendants 1 and 2 that Sher Singh had 1/2 share i.e., 9 biswas in the abadi plot measuring 18 biswas ibid. It was further represented by them that Sher Singh was given 1/2 share at the time of family partition in lieu of his l/5th share in the other two and this abadi properties. They persuaded him to purchase 1/2 share=9 biswas of Sher Singh for a sum of Rs.4,000/-. He entered into agreement of sale with Sher Singh for a sum of Rs. 4,000/- and paid him Rs. 1,400/- as earnest money. Balance sale price of Rs. 2,600/- was to be paid at the time of registration of the sale deed, which was stipulated to take place by 31.5.1973.

(2.) Sikander Singh, defendant No.3, Smt. Bhago defendant No.4 (appellant-herein), who are brother's son and brother's widow respectively of Sher Singh controverted the claim of Sher Singh that Sher Singh had 1/5th share in the other properties. They also denied that Sher Singh got 1/2 share in the abadi plot as detailed in the heading of the plaint at partition. They denied the title or Sher Singh qua 1/2 share=9 biswas out of abadi plot measuring 18 biswas. Sher Singh defendant did not execute the sale deed in favour of the plaintiff in pursuance of that agreement for sale. He went to U.K. in August, 1974 and returned to India in March 1976. On his return, Sher Singh was requested to execute sale deed but he kept on putting off on one pretext or the other. Registered notices were served on Sher Singh and Basta Singh and the other defendants for the due performance of the contract by the execution of the sale deed, but in vain. It was further averred in the plaint that plaintiff Rajinder Singh was always ready and willing to pay the remaining sale money to Sher Singh defendant and obtain sale deed from him and was still ready and willing to perform his part of contract. It was Sher Singh defendant, who defaulted, in executing sale deed, in pursuance of agreement of sale.

(3.) Defendant No. 1 Sher Singh contested the suit of the plaintiff urging that the suit is time barred, plaintiff is estopped by his act and conduct from seeking specific performance when he got earnest money back on 2.8.1976. It was denied that he got Rs. 1,400/- as earnest money. He got only Rs. 400/- as earnest money and that also, the plaintiff received back. It was urged that plaintiff himself was not ready to perform his part of contract. Plaintiff never came to him nor did he go to the office of Sub Registrar on the stipulated date, ready to pay the price of the plot as per agreement. Defendant remained in India till August 1974 and then he was ready to perform his part of contract. Plaintiff backed out. Sher Singh defendant went to UK in August, 1974 and returned to India on 12.12.1975. Till August, 1974, the plaintiff was his counsel in the partition suit and he never showed any willingness to obtain sale deed in pursuance of agreement to sell dated 10.1.1973. Contract was rescinded by the plaintiff. Notice was served on him (defendant Sher Singh) in the second week of August, 1976 by the plaintiff, which was duly replied by him. Plaintiff never came forward to perform his part of contract on or before 31.5.1973. He never issued any notice to him presumably because he know that failure on his part of perform his part of contract had already taken place. While going to UK, he had given power of attorney to his wife and the plaintiff had known that his wife was his attorney in respect of his entire property and that he could call upon her to execute sale deed on his behalf.