GURDIAL SINGH Vs. DARSHAN SINGH

JUDGEMENT

(1.) THIS letters patent appeal is filed by the original defendants No. 2 to 5 challenging the legality and correctness of the judgment and decree dated November 22, 1983, passed by the learned Single Judge in Regular First Appeal No. 359 of 1975.

(2.) THIS appeal arises out of a suit filed by respondents No. 1 and 2, the plaintiffs, for specific performance of the agreement to sell dated April 5, 1971, executed by the third respondent (defendant No.1), who was admittedly, the owner of the suit property. The appellants who were defendants No. 2 to 5 in the suit are the subsequent purchasers of the same land. The plaintiffs (hereinafter referred to as the plaintiffs) on April 6, 1973, filed civil suit No. 170 of April 20, 1973, against the third respondent (defendant No.1) who was the owner of the suit land (hereinafter called the owner), and the appellants) defendants No.2 to 5, who are (hereinafter referred to as the appellants) subsequent purchasers. The two plaintiffs were minors on April 5, 1971. They were under the guardianship of their father Mehar Singh. The owner on April 5, 1971, entered into an agreement to sell suit property in favour of the plaintiffs, they had paid the earnest money of Rs. 12,000/ - out of the total sale consideration of Rs. 30,000/ -. The last date for the execution of the sale deed was December 15, 1971. It is averred by the plaintiffs that despite several requests made to the owner, he failed and neglected to execute the sale deed. The owner (defendant No.1), has committed breach of the agreement which has given rise to the filing of the suit for specific performance of the agreement and possession thereof. As stated earlier, the subsequent purchasers, the appellants (referred to as the appellants), purchased the very same land under three different sale deeds. The first registered sale deed is dated July 27, 1971, regarding one -half share in the suit land for Rs. 20,000/ -, executed by the owner (defendant No.1). On February 2, 1973, the remaining one -half portion of the land was also purchased by the appellants under two registered sale deeds, Exhibits D -2 and D -3. This is how the appellants claim to be the owners in respect of the suit land under the registered sale deeds, dated July 27, 1971, Exhibit D -1, and dated February 2, 1973, Exhibits D -2 and D -3. It is pleaded by the plaintiffs that they were and are always ready and willing to perform their part of the contract and it is defendant No.1, the owner, who has committed the breach of the agreement. The plaintiffs have also pleaded that in terms of the agreement they had gone to the office of the Registrar to get the sale deed executed, but defendant No.1, the owner, did not turn up. It is in these circumstances that the plaintiffs have filed the suit against the defendants. Defendant No. 1, the owner, filed the written statement and denied the plaintiffs' claim. According to him, there was no agreement to sell at all. The alleged agreement to sell is a fabricated document. He denied having received any amount towards earnest money. Defendant No. 1 (the owner), further pleaded that he has sold the suit land to the appellants under the registered sale deed for valuable consideration and they were put in possession thereof. The claim of the plaintiffs is false. He also pleaded that assuming there was any agreement to sell in favour of the plaintiffs, they were never ready and willing to perform their part of the agreement and after such a long time, they are not entitled for a decree for specific performance and possession. In the end, defendant No.1 (the owner), pleaded that the suit of the plaintiffs is untenable and the same be dismissed.

(3.) THE learned Sub -Judge framed the issued arising out of the pleadings. Both the parties adduced evidence in support of their respective claims. The learned Sub -Judge vide judgment and order dated January 31, 1975, held that the plaintiffs had proved the agreement to sell and they were ready and willing to perform their part of the agreement. It was also held that defendant No.1 (the owner) did not deliver possession of any part of the land in part performance of the agreement to sell to the plaintiffs. The learned Sub -Judge, however, did not grant decree for specific performance of the agreement, but directed defendant No.1 (the owner) to pay compensation. The learned Sub Judge passed a decree in favour of the plaintiffs for the recovery of Rs. 12,000/ - as earnest money in addition to Rs. 5,000/ - by way of compensation.