ANIL KUMAR Vs. KANWAL SINGH AND ORS.

JUDGEMENT

(1.) THE present RSA at the instance of the appellant -defendant No. 3 is directed against the judgment and decree of the lower Appellate Court dated 29.11.2011 whereby the suit for possession by way of specific performance of contract/agreement to sell dated 14.09.2005 of the plaintiff, has been decreed and the appellant has been directed to claim damages against the defendants No. 1 and 2 - vendor and consequentially the sale deeds bearing number 3951 (Ex.P3) and 3952 (Ex.P4) have been cancelled/set aside and the defendants No. 1 and 2 have been directed to execute the sale deed in favour of respondent No. 1 -plaintiff within a period of two months on receiving the balance sale consideration, failing which plaintiff has given the liberty to get the sale deed executed through the process of the Court. Before adverting to the argument of learned counsel for the appellant it would be apt to refer few facts.

(2.) THE appellant -defendants No. 3 and 4 have purchased the land measuring 34 kanal from defendants No. 1 and 2 vide sale deed dated 13.10.2005 executed by defendants No. 1, 2 and Kiran Pal for a valuable consideration of Rs. 9,65,000/ -. The case set out by respondent No. 1 -plaintiff was that the respondents No. 1 and 2 -vendor had entered into agreement to sell dated 14.09.2005 for sale of land measuring 22 kanal 11 malra for a valuable consideration of Rs. 17,90,000/ -. At the time of execution of the agreement to sell a sum of Rs. 7,19,000/ - was stated to have been paid. The target date for registration and execution of the sale deed was fixed as 08.02.2006. It has been stated in the plaint that plaintiff requested defendants No. 1 and 2 prior to 8.02.2006 to perform their part of agreement but they did not perform and accordingly on the date fixed i.e. 8.02.2006 for registration and execution of the sale deed in the office of Sub Registrar, Sohna District Gurgaon the defendants No. 1 and 2 did not appear and on from inquiries plaintiff acquired the knowledge that the defendants No. 1 and 2 had sold the land measuring 34 kanal including the suit land to defendants No. 3 and 4 vide registered sale deeds mentioned above and delivered the possession to them. It has further been stated in the plaint that the sale deed had been executed during the subsistence of the agreement to sell and before the date of execution and registration of the sale deed and accordingly the suit for seeking specific performance of the agreement dated 14.09.2005 was instituted on 8.05.2006.

(3.) THE defendants No. 3 and 4 filed their separate written statement and took up the plea that they are bona fide purchaser for the valuable consideration and purchased the land vide two sale deeds bearing vasika number 3951 and 3952 dated 13.10.2005. Defendants No. 3 and 4 stated that the defendants No. 1 and 2 have revealed to them after filing of the present suit that some fraud was committed upon by them by Phalia as they never executed any agreement of sale deed in respect of suit land in favour of the respondent No. 1 -plaintiff. Defendants No. 1 and 2, Phalia, plaintiff, alleged scribe and attesting witnesses of the alleged agreement to sell dated 14.09.2005 conspired together. Since the parties were at variance, the trial Court framed as many as six issues including the issue of relief.