SHAM SINGH Vs. BASHAMBAR DASS AND ANOTHER

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against judgment dated 12.03.1987 passed by the First Appellate Court dismissing the appeal filed by defendant No. 1 -appellant against the judgment and decree dated 07.04.1986 passed by the Trial Court in this case. Plaintiff -Bashambar Dass (now respondent in this appeal) filed a suit for possession by way of specific performance of the agreement to sell dated 08.07.1982, which was later on renewed vide agreement dated 08.02.1983 with regard to 12 1/2 Killas of land, executed by Sham Singh -defendant No. 1 (Appellant). As per the plaintiff, defendant No. 1 had agreed to sell his land measuring 12 1/2 Killas out of total land measuring 204 Kanalas 15 Marlas for a consideration of Rs. 40,000/ - and he received Rs. 30,000/ - as earnest money at the time of execution of agreement dated 08.07.1982 and the sale deed was to be executed within 7 months. On 08.02.1983, the defendant No. 1 received a further sum of Rs. 4,000/ - and the date of execution of the sale deed was extended upto 30.06.1983. The remaining consideration of Rs. 6,000/ - was to be paid at the time of execution and registration of the sale deed. However, the defendant No. 1 did not was turn up to execute the sale deed. The plaintiff always remained ready and willing to perform his part of the contract and also remained present in the office of Sub Registrar, Pathankot on 30.06.1983. The defendant No. 1 did not appear to execute the sale deed. He had, rather, sold the land measuring 47 Kanals, 16 Marlas out of the disputed land to defendant No. 2 -Smt. Pushpa Lata and the sale deed in her favour had also been challenged by the plaintiff.

(2.) DEFENDANT No. 1 -Sham Singh in his written statement denied the execution of the agreement to sell the suit land to the plaintiff. Contention of defendant No. 1 is that he had taken loan of Rs. 23,000/ - from the plaintiff with whom, he had cordial relation. The loan was taken on 08.07.1982 with the condition that it would be returned to the plaintiff after 7 months with interest of Rs. 7,000/ -. He also sold the land measuring 47 Kanals 16 Marlas to defendant No. 2 - Smt. Pushpa Lata on 08.07.1982. It has also been admitted that the date of payment of amount received by him from the plaintiff was extended upto 30.06.1983 and the plaintiff had demanded further interest of Rs. 4,000/ - from him. Defendant No. 2 -Smt. Pushpa Lata in her separate written statement has alleged that she purchased the land measuring 47 Kanals, 16 Marlas from defendant No. 1 Sham Singh, who is the owner of the land measuring 204 Kanals 15 Marlas, and the suit is not maintainable against her. She also took the plea of bona fide purchaser and sought dismissal of the suit. The pleadings of the parties led to the framing of the following issues:

(3.) THE suit was decreed vide judgment and decree dated 30.07.1985. However, in appeal the suit was remanded vide judgment dated 11.02.1986 passed by Additional District Judge, Gurdaspur with a direction to grant one opportunity to the defendant No. 1 to lead evidence. As per order of the Appellate Court, defendant No. 1 was afforded an opportunity to produce the evidence but on the date fixed, he could not produce any evidence and his evidence was again closed.