JIWAN LAL Vs. P D KUMAR

JUDGEMENT

(1.) The plaintiff-appellant has come up in Regular Second Appeal against the judgment and decree of the First Appellate Court reversing on appeal those of the trial Judge whereby suit of the plaintiff for separate possession and for rendition of accounts was decreed. The facts :-

(2.) The disputed property was owned by Brij Mohan; that he entered into an agreement to sell dated December 9, 1959 with Bal Krishan Das, Dr. Jiwan Lal and Kishan Dass, that Brij Mohan did not execute the sale deed in pursuance to the agreement to sell, that the prospective vendees filed a suit for specific performance of the agreement to sell, which was decreed and the judgment and decree was up held by the Apex Court; that pursuant to the decree for specific performance of the agreement to sell, sale deed dated September 9, 1977 was executed in favour of the vendees under the orders of the Court; that Dr. Jiwan Lal filed a suit for separate possession by partition of the disputed property and also for rendition of accounts; that he claimed that he had 44% share in the disputed property and not 1/3rd share as is mentioned in the sale deed, dated September 9, 1977; that the vendor did not adhere to the terms of the agreement to sell had to be filed; that the plaintiff had been prosecuting the suit and the appeals and to compensate him, as agreement was executed stipulating that the plaintiff will have 44% share in the dispute property. The trial Judge on consideration of the evidence came to the conclusion that the agreement Ex. P-1 under which it was provided that the plaintiff would have 44% share in the disputed property did not require stamp and registration and was not inadmissible for want of stamp and registration. He also held that the agreement Ex. P1 although undated was executed prior to the execution of the sale deed. He decreed the suit relying upon the agreement Ex. P.1.

(3.) The First Appellate Court concurred with the finding of the trial Judge that the agreement Ex. P1 was admissible in evidence since it was only a memorandum of understanding arrived at between the parties. He, however, held that the terms of the agreement Ex. P1 stood superseded by the terms of the sale deed dated September 9, 1977. The sale deed was executed in compliance of the civil Court decree vide which the suit for specific performance of the agreement to sell dated September 9, 1977 was decreed. Admittedly in the agreement to sell and the vendees had 1/3rd shares each in the disputed property. The agreement was specifically enforced in the civil court and the decree could not run counter to the terms of the agreement to sell unless it was proved that the parties to the agreement viz. the vendor and the vendees had varied the terms of the agreement. In the instant case, the vendee inter se entered into an agreement of understanding agreeing to give excess share to the plaintiff that the one stipulated in the agreement to sell. The necessity to write the agreement of understanding arose because Bal Krishan and Bishan Dass vendees wanted to compensate Dr. Jiwan Lal for the labour put in by him in prosecuting the litigation which had cropped up between the vendors and the vendees. As observed earlier, the vendor did not execute the sale deed in terms of the agreement to sell and the matter had to be taken to the civil Court and the litigation was fought right upto the Supreme Court. The plaintiff Dr. Jiwan Lal had been prosecuting the litigation till it culminated in the Apex Court. It is not disputed that the agreement of understanding Ex. P1 is genuine. The objection to its admissibility was raised only on the ground that it required stamp and registration. The document does not bear the date but the evidence aliunde suggests that it was entered into before the culmination of the litigation in the Apex Court. The only ground on which the First Appellate Court rejected the document Ex. P1 is that it terms stood superseded by the sale deed. This view of the First Appellate Court is unjustified and unwarranted and it indicates lack of appreciation of the facts in correct legal perspective.