MALKIAT SINGH Vs. OM PRAKASH

JUDGEMENT

(1.) This Regular Second Appeal was originally filed by Malkiat Singh-plaintiff, who died during its pendency on 21-8-2000 and, vide order dated 12-2-2002, his sons Mukhtiar Singh and Balraj Singh were substituted in his place.

(2.) This appeal has been filed against the judgment and decree dated 4-9-1982 passed by Additional District Judge, Ferozepur, vide which the appeal filed by Chand Singh defendant No. 2 against the judgment and decree dated 10-10-1981 passed by Additional Senior Sub-Judge, Ferozepur, has been accepted; suit of the plaintiff for specific performance of the agreement has been dismissed and his suit for recovery of Rs. 3,360/- i.e. Rs. 3,000/- as return of the earnest money and Rs. 360/- as damages by way of interest at the rate of 12% per annum has been decreed, whereas the appeal filed by Malkiat Singh-plaintiff against the aforesaid judgment and decree dated 10-10-1981 has been dismissed.

(3.) The brief facts of the case are that on 12-12-1977 Malkiat Singh plaintiff entered into an agreement of sale with Om Parkash, defendant No. 1 for the purchase of land measuring 36 Kanals situated in Village Talwandi Bhai at the rate of Rs. 9,500/- per acre. At the time of the execution of the agreement, an amount of Rs. 3,000/- was paid as earnest money to defendant No. 1. The remaining sale consideration was to be paid by the plaintiff at the time of execution of the sale deed, which was to be executed on or before 25-6-1978. When prior to the last date of execution of the sale deed, plaintiff became apprehensive of the sale of the disputed land by defendant No. 1 in favour of defendant No. 2, he filed a suit for permanent injunction against defendant No. 1 on 22-4-1978. Thereafter, he served a legal notice upon defendant No. 2 on 28-4-1978. In spite of that, defendant No. 1 executed registered sale deed dated 1-6-1978 regarding the land in question in favour of defendant No. 2. Hence, the plaintiff filed the instant suit for specific performance on 19-11-1978 against both the defendants. It was alleged that in addition to Rs. 3,000/- which was paid as earnest money on 12-12-1977 at the time of the execution of the agreement of sale, a sum of Rs. 15,700/- was paid by the plaintiff to defendant No. 1 on 14-2-1978 vide pronote and receipt, which amount was to be adjusted towards the sale consideration. Thus, it was alleged that a total amount of Rs. 18,700/- was paid by the plaintiff to defendant No. 1 towards the sale consideration of the disputed land; and he was ready and willing to pay the remaining amount, but defendant No. 1, in violation of the terms of the aforesaid agreement, illegally sold the land in question in favour of defendant No. 2 vide registered sale deed dated 1-6-1978. It was alleged that the plaintiff was to pay Rs. 42,750/- as the total sale consideration, out of which he had already paid Rs. 18,700/-. Therefore, on payment of the balance amount, defendant No. 1 was sought to be directed to execute and register sale deed in favour of the plaintiff as he was always ready and willing to perform his part of the agreement.