ABDUL MASIH Vs. MAJOR SINGH

JUDGEMENT

(1.) The present appeal, at the hands of the defendant, is directed against the judgement of reversal, whereby first appeal of the plaintiff was allowed by the learned District Judge, decreeing his suit for possession by way of specific performance of agreement to sell.

(2.) Brief facts of the case, as recorded by the learned first appellate court in paras 2 to 4 of the impugned judgement, are that defendant-appellant was owner in possession of the house in dispute. He entered into an agreement for sale of the said house on 10.11.2001 for a consideration of Rs. 1,25,000/- in favour of the plaintiff. He received Rs. 68,000/- as earnest money and agreed to execute the sale deed on receipt of balance sale consideration on or before 10.11.2002. The agreement was scribed by Sohan Lal Gulati document writer at the instance of defendant and was attested by the witnesses, Dula Singh Member Panchayat and Jagir Singh Member Panchayat. On 11.11.2002, with mutual consent of the parties, the date for execution of the sale deed was extended upto 10.5.2003 and an endorsement to this effect was scribed at the back of the original agreement, attested by Dula Singh and Jagir Singh Member Panchayat. On 10.5.2003 and 11.5.2003 being holidays, on 12.5.2003, the plaintiff alongwith the balance sale consideration and expenses for stamp and registration came to the office of Sub Registrar, Zira, but the defendant did not turn up. The plaintiff got his presence marked by filing an application in the office of Sub Registrar, Zira. On 3.7.2003, at Zira, with mutual consent of the parties, the date for execution of the sale deed was extended upto 10.12.2003 and a writing to this effect was prepared, which was signed by the defendant and attested by Jagir Singh Ex-member panchayat and Jagtar Singh. The scribe also entered the said writing dated 3.7.2003 in his register and the defendant also signed against the relevant entry of the register of document writer. On 23.12.2003, the plaintiff issued a registered AD notice to the defendant, which was duly received by him. On 10.12.2003, the date of execution of the sale deed was extended to 17.8.2004 and an endorsement to this effect was duly scribed at the back of the extension of agreement dated 3.7.2003, which was witnessed by Sukhdev Singh son of Boota Singh and Jangir Singh son of Gian Singh and signed by the defendant in the presence of the witnesses. On 17.8.2004, the plaintiff alongwith the balance sale consideration and requisite expenses for stamp and registration came to the office of Sub Registrar, Zira and waited for the defendant, but the defendant did not turn up. The plaintiff got his presence marked by filing an application in the office of Sub Registrar, Zira,which was returned to the plaintiff after marking his presence. On 24.8.2004, the plaintiff issued a registered AD notice to the defendant,which was duly received by him, but did not care for execution of the sale deed in respect of the house in dispute. The plaintiff personally approached the defendant for the execution of the sale deed in his favour, but to no effect. The plaintiff has always been ready and willing and is still ready and willing to perform his part of the agreement, but the defendant has committed the breach thereof. Hence the suit was filed.

(3.) The defendant filed written statement seriously contesting the claim of the plaintiff. By way of preliminary objections, he has challenged the maintainability of the suit in the present form, plaint being without any cause of action the agreement being forged, fabricated and ante-dated; the suit being bad for non joinder of necessary parties; the site plan being not according to the spot. He raised the plea that the plaintiff is a money lender. The answering defendant, his brother Barkat Masih and one Bohar Singh were in need of money and they approached Doola Singh son of Natha Singh resident of village Basti Gamewali Tehsil Zira to help them. Dula Singh took all of them to Major Singh plaintiff because Major Singh and Dula Singh were known to each other.