PHOOL WANTI Vs. SURJAN SINGH SADANA

JUDGEMENT

(1.) IN this letters patent; appeal by the plaintiff, the following facts appear to have been firmly settled by the two Courts.

(2.) THE plaintiff filed a suit for possession by specific performance of agreement of sale dated 27th of October, 1959 (Exhibit P-7) whereby the defendant is stated to have agreed to sell one-half share of bungalow No. 51/5/13, Court Road, Amritsar alongwith vacant land out-houses and appurtenant thereto, and also for a preliminary decree for rendition of accounts regarding the income and profits which had accrued to the defendant from the said property with effect from the date on which the defendant entered into possession of the said property to the date of execution of the sale deed pursuant to the above noted agreement. The suit property un-disputedly was an evacuee property which was put to auction by the Central Government on 19th of October, 1959. According to the plaintiff, the parties to the agreement who were displaced persons and were entitled to participate in the auction proceedings at that stage had mutually agreed not to outbid the latter and as a result thereof he refrained from giving by higher bid than the defendant. In consonance with this understanding, the defendant was to convey to him one-half share of the property in question in the event of acceptance of his bid and on the transfer of the property in his name by the Central Government. The property was undisputedly sold for a sum of Rs. 68,100/ -. It was further stated by the plaintiff that in pursuance of the above noted understanding the defendant on 27th of October, 1959, executed agreement Exhibit P-7 in his favour promising to convey one-half share in the said property after the issuance of the sale certificate in his favour and also to render accounts and share the income and profits from that property. Later, even though the sale certificate with regard to the property was issued in favour of the defendant on 8th of April, 1965 but the latter failed to fulfill his obligation under the above noted agreement. He served two notices Exhibits P-3 and P-9 dated 21st of November, 1959 and 7th of July, 1960, respectively. On the defendant calling upon him to perform his part of the agreement but since the latter never responded, this led to the filing of the present suit which was decreed by Senior Subordinate Judge, Amritsar, on 24th of April, 1968. The decree, however, has been reversed by the learned Single Judge in Regular First Appeal No. 152 of 1968. This letters patent appeal is directed against that decree of the learned Single Judge.

(3.) THE primary reason for reversal of the decree of the trial Court as noticed in the judgment under appeal in that the agreement in question could not be enforced or duly performed on account of the property in question having been acquired by the Improvement Trust, Amritsar, as a result of the proceedings under the Land Acquisition Act, 1894. It is the common case of the parties that notifications under Sections 4 and 6 of the Land Acquisition Act for the acquisition of this property were issued in the year 1962 and the resultant award under Section 11 of the said Act was announced by the Collector on 26th of July, 1967 that is, during the pendency of the suit. In spite of this the trial Court chose to decree the suit of the plaintiff on the ground that by that time the possession of the said property had not been taken by the Collector and, therefore, neither the defendant had been divested of his title to the same nor had it vested in the Trust, as envisaged by Section 16 of the Land Acquisition Act. However, during the pendency of the regular first appeal the possession of the property was taken by the Trust on 28th of October, 1973. The learned Single Judge noticing that factual change which he was entitled to take into consideration, has reversed the decree of the trial Court holding that since the property had vested in the Trust, free from all encumbrances, the agreement in question was no more enforceable. The claim of the plaintiff for sharing of the compensation money was also negatived for the reason that neither it had been so claimed in the plaint nor the plaintiff was otherwise entitled to it as with the execution of the agreement Exhibit P-7 no title in the property subject-matter of the litigation had come to vest in the plaintiff. Further his claim for rendition of accounts etc. was also declined on the ground that the relevant clause in the agreement that is clause (f) on which clause the said claim was primarily based was held to be an integral part of the agreement which could come into play only if the agreement as such was capable of specific performance. In other words the learned Single Judge concluded that the said part of the agreement could not be independently enforced. In the light of these conclusions, the learned Single Judge dismissed the suit of the plaintiff.