BHURU RAM Vs. DHARAMPAL AND ORS.

JUDGEMENT

(1.) DEFENDANT is in second appeal against the concurrent findings of fact, recorded by both the learned courts below in a suit for specific performance, whereby suit of the plaintiff -respondents was decreed. Brief facts giving rise to the present appeal are that plaintiff/respondent No. 1 filed a suit for specific performance, on the allegations that defendant No. 1 Dharampal entered into an agreement to sell dated 22.9.1992 with the plaintiff -respondent No. 1, to sell the agricultural land comprised in Khewat No. 41, Khatoni No. 65 measuring 49 kanals 14 marlas to the extent of 1/8th share i.e. 6 Kanals 4 marlas, Khewat No. 43, Khatoni No. 67 measuring 39 Kanals 14 marlas to the extent of 1/16th share measuring 2 Kanals 10 marlas, Khewat No. 50, Khatoni No. 77 measuring 12 kanals 2 marlas to the extent of 5/1536 share. It was alleged that at the time of agreement it was stated by defendant No. 1 that he was owner in possession of the land in dispute vide judgment and decree dated 12.3.1987 passed in Civil Suit No. 120 dated 10.3.1987 titled Balbirv. Bihari Lal. As per terms of the agreement, the total consideration of the land was agreed to be Rs. 70,000/ - out of which Rs. 60,000/ - were paid on 22.9.1992 as earnest money, while Rs. 10,000/ - were agreed to be paid on the date of execution of the sale -deed on 15.6.1993 and the possession was delivered to the plaintiff. It was alleged that the plaintiff requested defendant No. 1 several times to perform his part of contract but he avoided the matter by one and other pretext. The plaintiff has been ready and willing to perform his part of contract. On 15.6.1993, the plaintiff visited the office of Sub Registrar Mahendergarh alongwith the balance sale consideration but defendant No. 1 did not turn up and the plaintiff got marked his presence before Sub Registrar. It was alleged that the plaintiff secretly got transferred the land in dispute by way of consent decree dated 25.9.1992 in civil suit titled Savita v. Dharam Singh in favour of his wife. It was alleged that the defendant No. 1 could not get entered mutation of collusive decree dated 25.9.1992 because the plaintiff had already purchased 1/4th share of the property of defendant No. 1 comprised in Khewat No. 40, Khatoni No. 64 measuring 103 Kanals 10 marlas. The defendant No. 1 with malafide and dishonest intention alienated the disputed land in favour of defendant No. 3 who was uncle of defendant No. 1 vide sale -deed No. 517 dated 5.6.1993 for consideration of Rs. 60,000/ - and in fact no consideration passed for execution of false sale -deed dated 5.6.1993. On the basis of impugned sale deed dated 5.6.1993 wrong and illegal mutation No. 1230 dated 14.6.1993 has been incorporated and sanctioned in favour of defendant No. 3. The plaintiff requested the defendant No. 1 several times to perform his part of contract dated 22.9.1992 and get set aside the collusive decree dated 25.5.1992 and sale -deed dated 5.6.1993 and mutation No. 1230 dated 14.6.1994 and to execute the sale deed in favour of plaintiff after getting the balance amount in accordance with terms of agreement dated 22.9.1992 but defendant No. 1 avoided the matter and the plaintiff served a registered notice dated 7.6.1993 upon defendant No. 1 but it was of no avail. It is alleged that in case the court comes to the conclusion that agreement cannot be specifically enforced then decree for recovery of amount of Rs. 80,000/ - be passed in favour of plaintiff including a sum of Rs. 20,000/ - as damages/compensation along with interest and decree of declaration be passed to the effect that the consent decree passed in favour of his wife by defendant No. 1 dated 25.9.1992 and sale deed executed in favour of defendant No. 3 on 5.6.1992 and sale deed executed in favour of defendant No. 3 on 5.6.1993 and mutation No. 1230 dated 14.6.1994 were wrong illegal, null and avoid and have been created and procured by defendant No. 1 along with other defendants for defeating the interest of the plaintiff.

(2.) UPON notice, defendants No. 2 and 3 appeared and filed their separate written statements. In the written statement filed by defendants No. 2 and 3 similar averments were taken by defendant No. 1.

(3.) ON completion of pleadings of the parties, following issues were framed by the learned trial Court: - -