KAPOOR SINGH Vs. SURINDER SINGH

JUDGEMENT

(1.) THIS is plaintiffs' Letters Patent Appeal. Balwant Singh father of the defendants was the owner of land measuring 153 K. 19 M. i. e. the suit land. On 22. 7. 1964 he entered into agreement to sell land measuring 32-B, 6 B, 3-B with Arjan Singh, plaintiff No. 3. The sale price was fixed at Rs. 500/- per bigha. The Sale Deed was agreed to be executed on or before 15. 6. 1966. ' A sum of Rs. 1600/- was paid as stipulated under the agreement dated 22 7. 1964. However, the same could not be executed because of some civil suit which was filed by Nihal Singh and Atma Singh against Balwant Singh. The suit was finally dismissed in the year 1967. On the asking of Balwant Singh, Arjan Singh paid another sum of Rs. 14,000/- in addition to Rs. 16,000/- which was paid under the agreement. Balwant Singh died on 11. 2. 1968. On his death, his son Surinder Singh executed another agreement to sell on 17 10. 1968 in favour of plaintiffs to sell land measuring 153 K. 19 M. The agreement was executed by Surinder Singh acting on his behalf and on behalf of his sister, Tejinder Kaur. The land was agreed to be sold at the rate of Rs. 4,700/- per acre. A sum of Rs. 32,000/- which was paid earlier to Balwant Singh was taken to be earnest money under. the said agreement. As per the agreement, the Sale Deed was to be executed on or before 20 6. 1969. As per the case of the plaintiffs, they appeared before the Sub Registrar on 20. 6. 1969 to get the Sale Deed executed on payment of balance amount of sale consideration but defendants, Surinder Singh and Tejinder Kaur did not come to receive the balance sale consideration and to execute the Sale Deed. Plaintiffs have further stated in their plaint that sale money was shown to the Sub-Registrar. On failure of defendants to execute the Sale Deed, a telegraphic notice was also sent despite which the defendants failed to execute the Sale Deed. Plaintiffs have also alleged that they were always ready and willing to perform their part of the contract but for reasons best known to them, defendants refused to execute the Sale Deed. This led to the filing of the suit for specific performance. In the alternative, return of earnest money of Ks. 32,000/- with stipulated damages of Rs. 32,000/- was also claimed in the suit. Tejinder Kaur, in her statement, denied having executed any agreement or having ever appointed her brother as her attorney. Surinder Singh defendant though admitted the execution of the agreement dated 17. 10 1968 but denied that the plaintiffs were willing and ready to perform their part of the contract. Presence of the plaintiffs before the Sub-Registrar was also denied.

(2.) TRIAL Court, on the pleadings of the parties framed as many as 16 issues. All the material issues were decided in favour of plaintiffs except Issue No. 5 which is to the effect as to "whether the plaintiffs are entitled to claim specific performance of the agreements dated 22. 7. 1964 aud 17. 10. 1968 ?"

(3.) ON Issue No. 5, the trial Court declined to grant decree for specific performance of the agreement dated 17. 10. 1968 on the ground that the plaintiffs did not seek specific performance of the entire land. Two Khasra Numbers No. 39/4 and 39/3/2 were not included while describing the land in plaint. Therefore, it is a case of partial performance of the agreement which, under the law, could not be allowed. Relief of specific performance was also denied on finding that Surinder Singh defendant was not competent to enter into agreement on behalf of his sister in absence of any power of attorney given by here to him. Learned Single Judge also found that the share of Surinder Singh cannot be separated and, therefore, no decree for specific performance can be passed in view of the provision of Section 12 of the Specific Relief Act (for short the Act) as well as on the basis of the judgment of this Court in Harjinder Singh v. Kartar Singh, 1975 R. L. R. 377. However, a decree for a sum of Rs. 64,000/- i. e. Rs. 32. 000/- paid as earnest money and Rs. 32,000/- as damages was passed in favour of the plaintiffs. Plaintiffs as well as the defendants preferred first appeals in this Court against the judgment and decree of the trial Court, plaintiffs were aggrieved of the order of the trial Court which dismissed their suit for specific performance of the agreement dated 17,10. 1968 whereas the defendants were aggrieved of passing of a decree for Rs. 64,000/ -. Before the learned Single Judge, plaintiffs claimed that their application for amendment was wrongly declined by the trial Court wherein a prayer to include the two Khasra numbers was made. In support of this prayer, it was submitted before the learned Single Judge that though the entire land measuring 153 K 19 M. was mentioned in the body of the plaint' yet two Khasra numbers i. e No. 39/4 and 39/3/2 were inadvertently omitted. This defect was pointed out by the defendants at the time when arguments were being heard by the trial Court. Application for amendment was filed immediately thereafter. The learned Single Judge thought that decision on the application for amendment is not necessary as the plaintiffs otherwise also were not entitled to the specific performance of the agreement in view of the provisions of Section 12 of the Act. The learned Single Judge placed reliance on the case of Harjinder Singh's case (supra) in which it was held that "before the provisions of sub-section (5) of Section 12 can be made applicable, specific finding has to be recorded that the part of the contract, which is sought to be specifically performed, taken by itself, stands on an independent and separate footing from another part of the same contract which cannot and ought not to be performed which finding could not be recorded on the fact and circumstances of that case. " Keeping in view the observation made in Harjinder Singh's case (supra), the learned Single Judge, from the evidence, concluded that it could not be said as to of which portion of the suit land, Surinder Singh defendant was the owner for which specific performance of the agreement, Exhibit P-10 could be allowed. Thus, the appeal preferred by the plaintiffs was dismissed. The appeal of the defendants was also dismissed. Plaintiffs being aggrieved, have preferred the present Letters Patent Appeal. Defendants have not challenged the decree for Rs. 64,000/- which was passed against them by the trial Court, and as affirmed by the learned Single Judge.