ISHWAR SINGH Vs. RAJENDER SINGH

JUDGEMENT

(1.) This is defendants' second appeal against the judgment and decree of the learned First Appellate Court, Jhajjar, dated 17.2.2004 vide which the judgment and decree dated 11.11.1999 passed in a suit for specific performance with consequential relief of declaration and permanent injunction, in favour of the plaintiff has been affirmed.

(2.) Plaintiff-respondent filed a suit for specific performance of agreement to sell dated 28.8.1991 as well as permanent injunction against defendant Hardwari, who was the owner in possession of the disputed land measuring 115 kanals 9 marlas situated within the revenue estate of village Dulhera. It is pleaded that the plaintiff had been in cultivating possession of the suit land on the basis of an oral agreement between him and defendant No.1. He had constructed his residential house in plot No.555 measuring 2 kanals 2 marlas, a part of the disputed land, in the year 1980 with the permission of defendant No.1. Defendant No.1 executed a lease deed on 13/7/1991 in favour of the plaintiff for a period of five years with effect from 13/7/1991 to 12/7/1996 at the rate of Rs. 21,000.00 per annum as lease money. On 28.8.1991 defendant No.1 entered into an agreement regarding sale of disputed property in favour of the plaintiff for a sale consideration of Rs. 8,00,000/-, out of which Rs. 7,00,000/- were paid to him on 28.8.1991 itself. A receipt in this regard was also executed. Defendant No.1 had handed over symbolic possession to the plaintiff, as plaintiff was already in possession of the suit land. He had agreed to execute the sale deed on or before 27.4.1993 on receipt of balance sale consideration of Rs. 1,00,000/-, and in case, defendant No.1 failed to execute the sale-deed, plaintiff was at liberty to get the same executed through Court. Lateron defendant No.1 continued avoiding execution of the sale-deed on one pretext or the other.

(3.) Plaintiff kept waiting for defendant No.1 in the office of Sub-Registrar, Bahadurgarh on 27.4.1993 alongwith remaining amount of sale consideration, but defendant No.1 did not turn up. An application was moved by the plaintiff before the Sub-Registrar to mark his presence. Lateron it came to the knowledge of the plaintiff that defendant No.1 out of greed and with a malafide intention, had alienated the land comprising in Khasra No. 89/5, measuring 6 kanals 16 marlas out of the suit land in favour of defendants No. 3 and 4 vide registered sale-deed No. 2092 dated 20.10.1992 and alienated the land comprised in Khasra No.555 measuring 2 kanals 2 marlas in favour of defendants No. 5 to 8, vide registered sale deed No.2093 dated 20.10.1992. It is alleged that defendants No.3 to 8 were fully aware of the fact that plaintiff was in possession of the suit property and agreement to sell executed by defendant No.1 in favour of the plaintiff. Defendant No.1 also suffered a collusive decree dated 1.12.1992 in favour of defendant No.2 vide civil suit titled `Smt. Bholi Versus Hardwari' and transferred the remaining suit land in favour of defendant No.2, who is his real sister. The plaintiff, therefore, challenged the legality and validity of the sale deeds No. 2092 and 2093 dated 20.10.1992 executed in favour of defendants No.3 to 8 and also judgment and decree dated 1.12.1992 in civil suit No. 947 of 1992 titled as `Smt. Bholi Versus Hadwari'.