JAI NARAIN Vs. RAJMATI

JUDGEMENT

(1.) The plaintiffs being dissatisfied with the relief of refund of double of the earnest money along with interest at the rate of 9% granted by the trial Court in the suit instituted to seek possession of 19 Kanals 13 Marlas land by way of specific performance of the agreement to sell dtd. 26/5/1992, are in Regular Second Appeal before this Court as the First Appellate Court concurred with the judgment and decree dtd. 21/1/2019 of the learned trial Court and dismissed the plaintiffs' appeal.

(2.) In brief, the pleaded case of the plaintiffs may be noticed as thus: Sardara (predecessor of the plaintiffs) entered into an agreement to sell with Dharmla (predecessor of the defendants) on 26/5/1992 in respect of 19 Kanals 13 Marlas land situated in the revenue estate of village Humayunpur, Sub Tehsil Salhawas, District Jhajjar for a total sale consideration of ' 1,70,000/-, out of which earnest money of '50,000/- was paid. Balance amount of ' 1,20,000/- was agreed to be paid before the Sub Registrar at the time of registration of the sale deed. The agreement to sell was entered into on the representation of Dharmla that he was owner in possession 1/9th share of the land comprised in Khewat No.117, Khatoni No.158 to 162, measuring 55 Kanals 15 Marlas; 1/9th share in land comprised in Khewat No.119, Khatoni No.167 to 171 measuring 78 Kanals 12 Marlas; and 94/2130 share in the land measuring 106 Kanals 10 Marlas comprised in Khewat No.118, Khatoni No.163, 164 and 166 (total 19 Kanals 13 Marlas) situated in the revenue estate of village Humayunpur, Sub Tehsil Salhawas, District Jhajjar. At the time of agreement to sell dtd. 26/5/1992, the sanctioning of the mutation for partition qua the suit property was pending. Hence, it was agreed and stipulated in the agreement that after the decision of mutation proceedings of partition, which had gone in 'Nazar Sani' (reconsideration), the vendor would give one month's notice to the vendee for getting the sale deed registered. After the Khewat of suit property was partitioned, the vendor still did not offer to get the sale deed executed. The parties to the original agreement since passed away and the plaintiff being the legal heir of the vendee, filed the instant suit claiming that the defendants being legal heirs of the vendor were bound to honour the agreement to sell. It was further averred that ever since the agreement to sell dtd. 26/5/1992, the vendee, and after his death the plaintiffs had always been ready and willing to perform their part of the said agreement and were still ready for it. The plaintiffs issued legal notice dtd. 28/11/2013 to the defendants to get the sale deed executed, however, the defendants failed to do so. In the above facts and circumstances, relief of possession of 19 Kanals 13 Marlas land by way of specific performance of agreement to sell dtd. 26/5/1992 was sought by the plaintiff and for direction to the defendants to execute the sale deed in their favour. In the alternative, relief of recovery of earnest money with an interest @ 24% p.m. along with compensation was also claimed.

(3.) The defendants, in their written statement, admitted Sardara to be the predecessor of plaintiffs and Dharmla to be their predecessor however, the execution of agreement to sell dtd. 26/5/1992 for the purpose of the sale of the land was denied. It was rather claimed that there had in fact been a loan transaction and the agreement was created merely to secure the repayment of loan. It was also submitted that the plaintiffs were well aware of the decision on the 'Nazar Sani' Mutation but never took any action against Dharmla during his lifetime. A prayer was made for dismissal of the suit as no cause of action had accrued to the plaintiffs to file the suit.