IQBAL SINGH Vs. GURDEV KAUR

JUDGEMENT

(1.) This Regular Second Appeal has been filed by the plaintiffs against the judgment and decree dated 12-1-1984 passed by the Addl. Distt. Judge, Faridkot, vide which the appeal filed by the defendants was allowed, the judgment and decree dated 9-11-1981 passed by the trial Court were set aside and the suit of the plaintiffs was dismissed.

(2.) Plaintiffs appellants had filed a suit for possession by specific performance of the agreement to sell dated 6-11-1978 in respect of sale of land measuring 10 kanals detailed in the heading of the plaint on payment of Rs. 15,000/- and that a sum of Rs. 10,000/- was paid as earnest money at the time of the execution of the said agreement to sell. It was alleged that Sarwan Singh was in hissedari possession of the suit land which was owned by him and other co-sharers and that he executed the aforesaid agreement dated 6-11-1978 or the sale of the suit land in favour of the plaintiffs for a sum of Rs. 15,000/- and a sum of Rs. 10,000/- was received by him at the time of the execution of the agreement and balance sum of Rs. 5,000/- was to be paid at the time of execution and registration of the sale deed for which purpose the last date was fixed as 1-7-1979. It was alleged that the plaintiffs were ready and willing to get the sale deed executed on the payment of remaining sale price. It was alleged that defendants are the legal heirs of Sarwan Singh as Sarwan Singh had died in between. It was further alleged that defendants had failed to perform their part of the contract even though they were approached for this purpose. In the written statement defendants denied that Sarwan Singh had ever executed any agreement to sell in favour of plaintiffs or had received any amount towards the earnest money. It was alleged that Sarwan Singh was a simpleton and had lost senses due to old age and that the plaintiffs were dominating over him and might have secured the agreement by exercising undue influence and/or by deception, as Sarwan Singh was also mentally deranged. On the pleadings of the parties the trial Court framed the following issues : "1. Whether Sarwan Singh deceased agreed to sell the land in dispute to the plaintiff vide agreement dated 6-11-1978. If so on what terms and conditions? OPP. 2. Whether the plaintiff has been ready and willing and is even now ready and willing to perform his part of the contract? OPP. 3. Relief.

(3.) After hearing both sides and perusing the record, the learned trial Court decided issue No. 1 in favour of the plaintiffs and held that Sarwan Singh had executed the agreement to sell dated 6-11 -1978 in favour of the plaintiffs for the sale of his land measuring 10 kanals for Rs. 15,000/- and had received Rs. 10,000/- as earnest money. Under issue No. 2 it was held that the plaintiffs were always ready and willing to perform their part of the contract and to make payment of Rs. 5000/-. In the result the learned trial Court vide judgment and decree dated 9-11-1981 decreed the suit of the plaintiffs for specific performance of the agreement to sell dated 6-11-1978 on payment of Rs. 5000/-. However, the appeal filed by the defendants was allowed by the learned Addl. Distt. Judge and the suit filed by the plaintiffs was dismissed. Learned Addl. Distt. Judge upheld the finding of the trial Court on issue No. 1 and held that Sarwan Singh had executed the agreement to sell dated 6-11-1978 in favour of the plaintiffs and had received Rs. 10,000/- as earnest money. However, the finding of the trial Court on issue No. 2 was partly reversed inasmuch the finding that the plaintiffs were ready and willing to perform their part of the contract was upheld but holding that plaintiffs had failed to prove that they had brought and tendered the balance amount of Rs. 5000/- to the defendants, it could not be said that the plaintiffs had discharged the onus of issue No. 2. According, in view of the finding on issue No. 2, judgment and decree of the trial Court were set aside and the suit of the plaintiffs was dismissed. Aggrieved against the same, plaintiffs filed the present Regular Second Appeal.