BHAGWAN KAUR Vs. HARINDER PAL SINGH

JUDGEMENT

(1.) THIS letters patent appeal is by the defendant Shrimati Bhagwan Kaur, widow of the original defendant Bhagwan Singh against the judgment and decree of the learned Single Judge whereby the plaintiff's suit for specific performance of the contract for sale of certain agricultural land as per the agreement dated April 11, 1969, has been decreed, it may be mentioned that the suit was dismissed by the trial Court.

(2.) SOME necessary facts are that vide agreement dated April 11, 1969, Bhagwan Singh (since deceased) agreed to sell agricultural land measuring 55 bighas comprised in Khasra No. 176 in village Dhamomajra for a consideration of Rs. 82,500/ -. A sum of Rs. 5,000/- was paid as earnest money and the balance was agreed to be paid after defendant got the land partitioned. The agreement also stipulated for payment of Rs. 40,000/- as penalty for non-performance of the agreement. Since the defendant neither initiated the partition proceedings nor executed the sale deed in favour of the plaintiff despite demand, the suit for specific performance of the agreement to sell was filed. The averment in the plaint is that the plaintiff-respondent was ever ready and willing to perform his part of the contract on payment of the balance sale price. It may also be mentioned that at one stage the defendant Bhagwan Singh alienated a part of the land and threatened to continue to alienate further and, therefore, the plaintiff-respondent brought a suit claiming injunction against Bhagwan Singh, deceased, seeking to restrain him from alienating the suit land. That suit was, however, dismissed for default of appearance on January 1. 1, 1971, whereafter instead of getting that suit restored, the plaintiff respondent filed the present suit on January 14, 1971. The suit was resisted by the defendant only on the ground that no such agreement to sell the land was executed. The receipt of the earnest money by him from the plaintiff in pursuance thereof was also denied. A plea was also raised that the plaintiff was estopped from filing the personal suit because of the dismissal of the earlier suit. On such a written statement, the following issues alone were struck by the trial court:

(3.) THE trial court held that the agreement was executed as alleged by the plaintiff, that the plaintiff was ready and willing to perform his part of the contract and that the plaintiff was not estopped from riling the present suit. However, the relief of specific performance was denied to him on the grounds that the defendant had alienated some land prior to the filing of the suit and had also alienated some land during the pendency of the suit and that the subsequent vendees had not been made parties to the suit The relief of specific performance was also declined because the suit land was not got partitioned by the defendant as stipulated in the agreement. The trial court, thus, granted a decree for the return of Rs. 5,000/- and also awarded Rs. 3,000/- as damages.