MOHAN SINGH Vs. GURDEEP SINGH

JUDGEMENT

(1.) This is the regular second appeal filed by the plaintiff in the original suit, against the judgment and decree passed by the lower appellate court; vide which while partly reversing the findings recorded by the trial court in the suit for specific performance of the agreement to sell, the decree passed by the trial court was modified; and the suit of the appellant was partly decreed only qua recovery of the earnest money.

(2.) For the convenience and continuity, the parties are being referred to herein as the plaintiff and the defendant, as they were described in the original suit. One more thing which deserves to be noted is that during the pendency of the appeal before the lower appellate court, the defendant No.1 in the suit had expired and his legal representatives were brought on record. Subsequently, even the plaintiff also expired and now the appeal is being prosecuted by the legal representatives of the original plaintiff in the suit.

(3.) Briefly stated, the facts involved in this case are that the suit for specific performance was filed by the plaintiff on 11.04.2005 asserting therein that defendant No.1-Gurdeep Singh had entered into an agreement to sell dated 10.11.2004. Vide this agreement, the agricultural land measuring 40 kanal 6 marla, situated in Village Sio, was agreed to be sold for a consideration of RS.33,60,000/- (Rupees thirty three lacs sixty thousand only). An amount of RS.10,00,000/- (Rupees ten lacs only) was received by the vendor as earnest money. The land was owned by defendants No.1 and 2. Accordingly, both the defendants had signed the agreement, as well as, the receipt, as token of having obtained the earnest money. The target date for execution of the sale deed was fixed to be on or before 31.03.2005. On 30.03.2005 the plaintiff requested the defendants to execute the sale deed in his favour after receiving the balance sale consideration as per the terms of the agreement. However, the defendants put false excuse and showed no interest in executing the sale deed in favour of the plaintiff. Accordingly, on 31.03.2005, the plaintiff got prepared two drafts in favour of the defendants for the balance sale consideration and remained present in the office of the SubRegistrar from 9.00am to 4.00pm. When the defendants did not come present during the whole day, the plaintiff got his presence marked in the office of the Sub-Registrar; as a mark of his readiness and willingness to get the sale deed executed. However, since the sale deed could not be got executed as per the agreement to sell, therefore, the suit for the specific performance was instituted by the plaintiff. This also deserves to be mentioned that, in the first instance, only the defendant No.1 was arrayed as defendant in the suit. However, subsequently defendant No.2, who is the son-in-law of defendant No.1, was also arrayed as defendant by amendment of the plaint. During the pendency of the suit, the sons and wife of the defendant No.1 had also obtained a collusive decree dated 30.05.2009 from the defendant No.1. Accordingly, the suit was again amended by the plaintiff to challenge the said collusive decree. Subsequently, even the mutation based upon that decree came to the knowledge of the plaintiff, and therefore, again by amending the suit, the mutation was also challenged in the suit.