NIRMAL SINGH Vs. MANGAL SINGH

JUDGEMENT

(1.) This is defendant's appeal against the judgment and decree dated 24-9-1999 of District Judge, Kapurthala, whereby he dismissed his appeal and, thus, confirmed the judgment and decree dated 27-8-1996 of Civil Judge (Senior Division), Kapurthala, whereby he had decreed the plaintiff/respondents suit for possession by way of specific performance of agreement to sell dated 18-6-1993 in respect of land measuring 15 kanals 17 marlas on payment of a sum of Rs. 70,000.00 (minus Rs. 50,000.00 already paid as earnest money) and further decreed the suit for declaration to the effect that the decree dated 3-9-1994 passed ex parte in suit No. 259 of 9-6-1994 by Additional Senior Subordinate Judge, Kapurthala, was illegal, wrong, void and inoperative and not binding on the plaintiffs and so also the sale deed executed by Smt. Charan Kaur in favour of Nirmal Singh defendant (appellant herein) and further for permanent injunction restraining Smt.Charan Kaur Regular Second Appeal No. 5049 of 1999; Kaur and Nirmal Singh defendant from alienating or transferring the suit land to anybody else except the plaintiffs, and suit for permanent injunction restraining the defendant from interfering in the possession of the plaintiffs over the suit land was dismissed. The facts:-

(2.) Nirmal Singh filed suit for possession by way of specific performance of agreement to sell dated 5-6-1993 against Smt. Charan Kaur daughter of Bala Singh, widow of Mihinder Singh, resident of village Nathu Chahal qua land measuring 15 kanals 17 marlas on payment of Rs. 1,30,000.00 minus Rs. 24,000.00 (paid as earnest money to her on 5-6-1993 at the time of the execution of agreement). It was suit No. 259 of 9-6-1994 which was decreed ex parte on 3-9-1994 by Additional Senior Subordinate Judge, Kapurthala. In pursuance of that ex parte decree, sale deed was executed by Charan Kaur in favour of Nirmal Singh on 6-1-1995. Mangal Singh and Baldev Singh filed suit No. 277 of Rs. 7,1993 for permanent injunction against Smt. Charan Kaur and Nirmal Singh restraining them from alienating or transferring land measuring 15 Kanals 17 marlas as also from interfering in their possession of the said land and for specific performance of agreement to sell dated 18-6-1993 qua land measuring 15 kanals 17 marlas executed by Smt. Charan Kaur in their favour on payment of a sum of Rs. 70,000.00 minus Rs. 50,000.00 which was paid as earnest money at the time of execution of the agreement dated 18-6-1993 and, in the alternative, suit for recovery of Rs. 70,000.00 along with interest at the rate of 12 per cent per annum from the date of execution of agreement to sell dated 18-6-1993 till its realisation and also suit for declaration to the effect that decree dated 3-9-1994 passed ex parte in suit No. 259 of 9-6-1994 by Additional Senior Sub-Judge, Kapurthala and the sale deed executed by defendant No. 1 in favour of Nirmal Singh defendant in consequence thereof, was illegal, wrong, void and nullity and inoperative and are not binding upon them (Mangal Singh and Baldev Singh).

(3.) It is alleged in the plaint that Smt. Charan Kaur who was owner of land measuring 15 kanals 17 marlas had agreed to sell the same to them vide agreement to sell dated 18-6-1993 for a total sum of Rs. 70,000.00. Smt. Charan Kaur received a sum of Rs. 50,000.00 as earnest money from them at the time of execution of the agreement to sell dated 18-6-1993. She undertook to execute sale deed in terms of that agreement on receipt of the remaining sale money on 30-11-1993. On 30-11-1993, the plaintiffs went to the office of the Sub-Registrar, remained present there with the aforesaid sale consideration and also the amount required for meeting the expense of stamp and registration and waited for the defendant so as to obtain sale deed from her on payment of the remaining sale money. Defendant Smt. Charan Kaur, however, did not turn up. They swore an affidavit and got it attested in this respect on 30-11-1993. They have always been ready and willing to perform their part of the contract viz. they have always been ready and willing to pay the remaining sum of Rs. 20,000.00 to Smt. Charan Kaur and to obtain sale deed from her, but it was Smt. Charan Kaur who ran away and defaulted. They approached Smt. Charan Kaur on 1-12-1993 and requested her to execute sale deed. She refused to do so. Plaintiffs were already in possession of the land in suit. Smt. Charan Kaur in connivance with Nirmal Singh defendant fabricated the agreement ante dating it to 5-6-1993 with a view to defeating the rights of the plaintiffs and obtained decree dated 3-9-1994 during the pendency of civil suit No. 277 of 16-7-1993 without impleading plaintiffs i.e. Mangal Singh and Baldev Singh as party to suit No. 259 of 9-6-1994.