BALBIR SINGH MISTRI Vs. MAHENDER SINGH AND ANOTHER

JUDGEMENT

(1.) The defendant-appellant is in second appeal before this Court.

(2.) The plaintiff-respondent filed a suit for mandatory injunction against the defendant stating that the land situated in village Kanina, Tehsil and District Mohindergarh and reflected in khewat No.163,164 Khatoni No.82, rectangle and Killa No.66//2/2, 9/1 measuring 2K is owned and possessed by defendant Balbir Singh. The plaintiff had entered into an agreement dated 22.7.1991 with the defendant and in terms thereof, four shops were to be constructed upon such land for which the construction and building material was to be provided by the plaintiff and in consideration, a sale-deed pertaining to two shops was to be executed in favour of the plaintiff. Such agreement was executed in the Bahi (ledger book) which was duly signed by defendant Balbir Singh as well as the plaintiff in the presence of two witnesses, namely, Ram Sarup and Ram Avtar. Still further, it was pleaded that as per a foot note written in the Bahi, it was also agreed that upon the construction having been raised upto plinth level, the level of the land of the plot would be completed by defendant-Balbir Singh by putting in earth and for that, a payment will be made by the plaintiff to the extent of Rs.800/-. It was pleaded in the plaint that the plaintiff had already spent a sum of Rs.10,000/- for purposes of construction of boundary wall upto 6' height and that the plaintiff was ready to pay a sum of Rs.800/- to the defendant to have the ground levelled but the defendant has not fulfilled such condition in terms of the agreement dated 22.7.1991 and he had been prevented from constructing the shops on the suit land. Accordingly, the defendant be directed to immediately level the ground so that the further construction can be effected. By way of amendment of the plaint, the plaintiff also challenged a sale-deed dated 1.7.1994 which had been executed by defendant No.1 in favour of defendant No.2 during the pendency of the suit. Still further, an alternative relief was claimed for a sum of Rs.30,000/- as damages.

(3.) Defendant No.1, upon notice, filed a written statement stating that the agreement was executed on 22.7.1991 but the plaintiff had made alterations thereupon and on account of such tampering and conduct of the plaintiff, he was not entitled to any relief. The defendant set up a plea that the agreement was to be fulfilled only upon construction to be undertaken by using cement and sand whereas the plaintiff had only used mud and earth. In nut-shell, the defendant cited that any variation in the agreement dated 22.7.1991 without his knowledge and consent could not be enforced and he was not bound by any terms of the agreement. The defendant further pleaded that upon the plaintiff having failed to adhere to the terms of the agreement, the plot had been sold to defendant No.2 through a registered sale-deed.