TEJA SINGH Vs. AMAR SINGH

JUDGEMENT

(1.) This is 'defendant's regular second appeal. Briefly put, the plaintiff entered into an agreement for purchase of land measuring 19 kanals, 6 marlas, i.e., 1/2 share of 38 Kanals 12 Marlas of land situate in village Raiwal Bait with defendant No. 1 vide agreement dated 30.11,82, pursuance to which he paid a sum of Rs. 15, 000/- as earnest amount. As per terms mutually agreed upon, the price of the land was fixed at the rate of Rs. 16,000/- per acre. The sale deed was to be executed on or before 30.11.83. It is the case of the plaintiff that before the expiry of the day fixed for execution of sale deed, i.e., 30.11.83, defendant No. 1. entered into another agreement of sale with defendant No. 2 vide alleged agreement dated 3.1.83 which put the plaintiff on alert. Thus, with a View to protect his valuable right, the plaintiff filed a suit for permanent injunction on 7.1.1983 restraining defendant No. 1 from alienating the suit land to anybody else. During the pendency of the suit, the plaintiff amended the plaint and converted the suit for injunction into a suit for specific performance with the same allegation and thus prayed that a decree for specific performance be granted in his favour and against defendant No. 1 or in the alternative for a decree of a sum of Rs. 38,600/-.

(2.) Defendant No. 1 contested the suit. He admitted that he is owner of the suit land but denied the execution of the agreement. He took up the plea that, in fact, vide the alleged agreement he intended to mortgagee the land in favour of the plaintiff. Since the agreement in question was for mortgage so the defendant was competent to execute the sale deed in favour of defendant No. 2. Remaining allegations of the plaintiff were also denied.

(3.) On the pleadings of the parties, following issues were framed.