(1.) This judgment will dispose of Regular First Appeal Nos. 510 and 666 of 1975, as both of them have been filed against the same judgment of the trial Court dated July 30, 1975. Regular First appeal No. 510 of 1975 has been filed on behalf of the plaintiffs to challenge the decree of the trial Court whereby their suits was only decreed for possession of one-half share of the suit land, belonging to Kishan Singh, defendant, through specific performance of the contract of sale dated June 4, 1971, whereas Regular First Appeal No. 666 of 1975 has been filed on behalf of the defendants aggrieved against the decree of the trial Court passed in favour of the plaintiffs.
(2.) The plaintiffs brought the suit for possession by way of specific performance of the agreement to sell, dated June 4, 1971, Exhibit P.2 allegedly executed by Kishan Singh and Darshan Singh defendant Nos. 1 and 2, respectively, in favour of the plaintiffs to sell their land measuring 29 kanals 5 marlas. The suit land belonged to the defendants jointly and in equal shares. Buta Singh, plaintiff No. 1 and Bakshish Singh son of Sohan Singh were already in its possession as mortgagees from both the defendants. The defendants had agreed to sell the suit land vide agreement to sell, Exhibit P.2. According to the terms and conditions thereof, the sale deed was to be executed on or before December 30, 1971 and in the event of the default on the part of the defendants, the plaintiffs were entitled to get the said agreement specifically enforced against them through Court. The sale price agreed between the parties was Rs. 26,325/-, at the rate of Rs. 7,200/- per killa. Out of the same, Rs. 5,000/- were alleged to have been paid to the defendants at the time of the execution of the agreement to sell by way of earnest money and the balance sale price was payable at the time of the execution and the registration of the sale deed. Rs. 4,000/- were kept, with the plaintiffs for payment to the previous mortgagees. According to the plaintiffs, they had always been ready and willing to perform their part of the agreement, but the defendants had wilfully committed the breach thereof. Thus, they filed the present suit on April 8, 1974, for specific performance of the agreement to sell. Exhibit P.2, and in the alternative, for the recovery of Rs. 10,000/- as the damages and compensation for the breach of the agreement to sell on the part of the defendants. In the written statement, filed on behalf of defendant Nos. 1 and 2, they admitted the factum of their ownership of the suit land and its mortgage in favour of the plaintiff and Bakshish Singh. However, the case set up by them was that it was Kishan Singh, defendant, who had agreed to sell the suit land qua his share alone. The receipt of Rs. 5,000/- as the earnest money by them was denied. It was also denied that the plaintiffs were ready and willing to perform their part of the agreement, Exhibit P.2. Since the plaintiffs were already in possession of the suit land as the mortgagees, they delayed the execution and registration of the sale deed. On the pleadings of the parties, the trial Court framed the following issues :-
(3.) The learned counsel for the plaintiffs-appellants contended that the findings under issue No. 1 and 2 have been wrongly recorded by the trial Court. According to the learned counsel the plaintiffs Karam Singh, appeared as P.W. 2 and categorically stated that the agreement, Exhibit P.2, was thumb-marked by Darshan Singh, defendant, as well. There was no challenge to this part of the statement of this witnesses in the cross-examination. The plaintiffs have not examined any other witnesses to corroborate this fact. Om Parkash who had typed the agreement, Exhibit P. 2 is stated to be alive by the plaintiffs. The same is the position with respect to the attesting witnesses of the agreement. But the plaintiffs have not examined even them what to speak of the scribe Om Parkash. On the other hand, Darshan Singh, defendant, appeared as his own witness as D.W.2, and stated that he never agreed to sell the suit land to the plaintiffs, nor he ever executed the agreement to sell, Exhibit P.2. He is corroborated to this effect by his brother and co-defendant Kishan Singh D.W.3. Surprisingly enough, according to the agreement, it bears the thumb-impression of Darshan Singh, defendant. No effort was made on behalf of the plaintiffs to prove the said thumb-impression of Darshan Singh, defendant, thereon by examining any handwriting expert. On the appreciation of the evidence, the trial Court rightly came to the conclusion that the preponderance of evidence was in favour of the defendants that Darshan Singh, defendant never executed the agreement to sell, Exhibit P.2, for the sale of the suit land in favour of the plaintiffs.