NAJAR SINGH Vs. DILAWAR SINGH

JUDGEMENT

(1.) The present two regular second appeals have been preferred by the defendant No.1 against the judgements and decrees passed by the Courts below decreeing the suit filed by the plaintiff. While the Trial Court had decreed the suit with regard, to the alternative relief of recovery of Rs.12,00,000.00, the lower Appellate Court decreed the suit for specific performance of agreement to sell dtd. 25/11/2013. The status ofthe parties before the Trial Court and this Court is that the plaintiff is the present respondent No.1, defendant No.1 is present appellant, defendant No.2 is present respondent No.2 while defendant No.3 is present respondent No.3.

(2.) Brief facts relevant to the present lis are that the plaintiff filed a suit for specific performance of agreement averring that the defendant No.1 through his attorney defendant No.2 had entered into an agreement to sell dtd. 25/11/2013 agreeing to sell the suit land measuring 10 Kanals 17 Marlas to the plaintiff for a total sale consideration of Rs.15,00,000.00 and had received Rs.12,00,000.00 as an earnest money and had agreed to receive the balance sale consideration of Rs.3,00,000.00 from him at the time of execution and registration of the sale-deed. The sale-deed was to be executed on or before 24/11/2014. However, vide sale-deed dtd. 27/5/2014 the defendant No.1 allegedly alienated land measuring 13 Kanals 12 Marlas, including the suit land, to defendant No.3 and mutation no.1218 was also got entered and sanctioned in favour of defendant No.3 who is the maternal nephew of defendant Nos.1 and 2 and was having full knowledge regarding the agreement to sell in question. It was averred that since the date of the agreement to sell the plaintiff had always been ready and willing to perform his part of contract and is still ready and willing to do so.

(3.) Defendant Nos.1 and 3 contested the suit while defendant No.2 was proceeded against ex-parte. In their joint written statement defendant Nos.1 and 3 raised preliminary objections regarding the alleged agreement to sell being a forged and fabricated document, suppression of true and material facts, estoppel, maintainability, locus-standi, limitation, suit not being properly valued, suit being collusive with and at the instance of defendant No.2 and cause of action. On merits it was submitted that defendant No.1 never appointed defendant No.2 as his attorney and that defendant No.1 neither himself nor through his alleged attorney entered, into or executed any alleged agreement to sell dtd. 25/11/2013 or any other date. It was alleged that the agreement to sell is a forged and fabricated document and had been prepared by the plaintiff in connivance with defendant No.2 and its alleged scribe and alleged witnesses with an oblique motive to cheat and defraud the answering-defendants and to grab the suit land. It was further stated that defendant No.1 was residing with defendant No.2 and his family, and he was having love and affection for Mandip Singh son of defendant No.2 and due to this fact the defendant No.1 executed a Will dtd. 5/6/2003 in favour of Mandip Singh and his father, defendant No.2. However, subsequently Mandip Singh and his father, defendant No.2, started insulting and misbehaving with defendant No.1 and he started residing with defendant No.3 and since then he was residing with him. It was alleged that defendant No.3 was serving and looking after defendant No.1 and therefore defendant No.1 executed a Transfer of Ownership Deed dtd. 27/5/2014 in favour of defendant No.3 qua his land measuring 13 Kanals 12 Marlas including the suit land. It is alleged that when Mandip Singh and his father, defendant No.2, got to know about this fact they got filed the present suit filed by concocting a false story. The answering-defendants also alleged that after going through contents of the present suit they came to know that on 5/6/2003, at the time of execution of the Will, defendant No.2 and his son Mandip Singh had also procured a general power of attorney dtd. 5/6/2003 in favour of defendant No.2 by misleading and misrepresenting defendant No.1 and that the alleged general power of attorney dtd. 5/6/2003 is a result of fraud and misrepresentation and that defendant no.1 had cancelled the Will dtd. 5/6/2003 vide cancellation deed dtd. 11/8/2014.