DARBARA SINGH Vs. MADAN MOHAN

JUDGEMENT

(1.) Darbara Singh Plaintiff has filed the instant second appeal.

(2.) Appellant-Plaintiff filed suit for possession of 17 kanals 18 marlas land in suit by specific performance of agreement to sell and in the alternative for the recovery of Rs. one lac. The Plaintiff alleged that Defendant No. 1 as co-owner of the joint land agreed to sell the suit land measuring 17 kanals 18 marlas to the Plaintiff at the rate of Rs. 2,50,000/- per acre and received Rs. 50,000/- as earnest money and executed agreement dated 14.2.1995. The Plaintiff was to pay further amount of Rs. 1,50,000/- to Defendant on 14.3.1995 and balance sale price was to be paid at the time of execution and registration of the sale deed upto 30.5.1996. Plaintiff always remained ready and willing to perform his part of the contract. On 14.3.1995, the Plaintiff asked Defendant No. 1 to receive Rs. 1,50,000/- in terms of the agreement but Defendant No. 1 resiled from the agreement. Plaintiff even went to the office of Sub Registrar on 14.3.1995 with requisite amount of Rs. 1,50,000/-but Defendant No. 1 did not turn up. On the other hand, the Plaintiff learnt that the suit land had already been attached by Assistant Registrar Cooperative Societies in loan case of Defendant No. 1. Defendant No. 1 sent notice dated 17.5.1995 to the Plaintiff asking him to pay Rs. 1,50,000/-. The Plaintiff sent reply to the notice mentioning about the attachment of the land which fact had not been disclosed by Defendant No. 1 to the Plaintiff at the time of agreement. The Plaintiff expressed his readiness and willingness to pay the balance sale consideration subject to Defendant No. 1 getting the land freed from encumbrance. Plaintiff filed civil suit No. 62 of 15.6.1995 seeking to restrain Defendant No. 1 from alienating suit land to any body else. Temporary injunction dated 16.8.1995 was granted in the said suit. The Plaintiff went to the office of Sub Registrar on 30.5.1996 with requisite money to get the sale deed executed and registered in terms of the agreement but Defendant No. 1 did not turn up nor Defendant no 1 informed the Plaintiff about clearance of loan and vacation of attachment of the suit land. Plaintiff even sent notice dated 8.6.1996 to Defendant No. 1 for executing the sale deed in terms of the agreement. However, Defendant No. 1 and his brother Brij Mohan sold the suit land to Defendant Nos. 2 to 7 vide two sale deeds dated 17.7.1996 and 19.7.1996. Defendants No. 2 to 7 were aware of the agreement in favour of the Plaintiff. Sale deeds in favour of Defendants No. 2 to 7 are, therefore, not binding on the Plaintiff.

(3.) Defendant No. 1 admitted the execution of the impugned agreement and also admitted that he was co-owner of the suit land. Defendant No. 1, however, pleaded that the Plaintiff failed to pay Rs. 1,50,000/- on 14.3.1995 as per terms of the agreement. In spite of notice dated 17.5.1995 sent by Defendant No. 1, Plaintiff failed to pay the said amount. Defendant No. 1 was in dire need of the money to clear the loan. Accordingly, the impugned agreement was repudiated and Defendant No. 1 entered into agreement dated 8.6.1995 for sale of the suit land to Defendants No. 2 to 7 and received Rs. 1,50,000/- and cleared his debts in installments on 15.6.1995, 16.6.1995, 11.7.1995 and 29.8.1995. Pursuant to subsequent agreement Defendant No. 1 and his brother had sold the suit land to Defendants No. 2 to 7. Defendants No. 2 to 7 claimed themselves to be bon afide purchasers of the suit land for consideration without notice and knowledge of the impugned agreement in favour of the Plaintiff.