SHANTI BAI Vs. LAKHPAT

JUDGEMENT

(1.) Defendant is in second appeal which has been filed under Sec. 41 of the Punjab Courts Act, 1918. Challenge in the present appeal is to the judgment and decree dtd. 20/12/1990 vide which the appeal filed by respondent Nos.1 to 3 (plaintiffs) was allowed and the suit of respondent Nos.1 to 3 (plaintiffs) for specific performance was decreed qua the entire land in question i.e., 8 kanals. Challenge has also been made to the judgment and decree of the trial Court dtd. 28/8/1989 vide which the suit filed by the respondent Nos.1 to 3 (plaintiffs) was partly decreed to the extent a decree for specific performance was granted qua 32 marlas of land. It would be relevant to note that the trial Court had decided the main issues in favour of plaintiffs-respondent Nos.1 to 3 while partly decreeing the suit of the plaintiffs and that no cross-appeal/cross-objections had been filed by the present appellant against the judgment and decree dtd. 28/8/1989 passed by the trial Court, before the First Appellate Court.

(2.) Learned counsel for the appellant has submitted that in the present case, mutation Ex.PX, which has been relied upon by the First Appellate Court to decree the suit of the plaintiffs qua the entire land in question, was entered into on 3/8/1983 and was sanctioned on 18/8/1983 i.e., prior to the filing of the civil suit, which was filed in the year 1985. It is submitted that although the plaint was amended twice however respondent Nos.1 to 3/plaintiffs had not made any reference to the said mutation proceedings (Ex.PX) and thus, benefit of the said mutation proceedings cannot be granted to the plaintiffs/respondent Nos.1 to 3. Learned counsel for the appellant has further referred to the amended plaint dtd. 9/2/1989, more so, para 1 to highlight the fact that the suit was filed was with respect to Rectangle No.92, Killa No.15 total measuring 9 kanals 11 marlas and the share claimed by respondent Nos.1 to 3 was 160/171 amounting to 8 kanals. It is submitted that however the First Appellate Court granted specific performance from Rectangle No.92, Killa No.15/2 and that as per Sec. 22(2) of the Specific Relief Act, 1963, no relief of possession/partition, refund of earnest money can be granted by the Court unless it has been specifically claimed. It is thus submitted that the relief which was not claimed could not have been granted by the First Appellate Court and since, the First Appellate Court has granted the said relief, thus, the judgment of the First Appellate Court deserves to be set aside on the said ground. It is further argued that the judgment of the First Appellate Court is not in consonance with the decree passed by the First Appellate Court, inasmuch as, a perusal of the decree sheet would show that the same has been passed with respect to Rectangle No.92, Killa No.15 and there is no mention of Killa No.15/2 in the same although the same is mentioned in the judgment of the First Appellate Court. It is submitted that the observations which have been made by the First Appellate Court have resulted in rewriting of the contract, inasmuch as, the contract/agreement to sell was only with respect to Rectangle No.92, Killa No.15 and Killa No.15/2 was not a part of the agreement.

(3.) Learned counsel for the appellant has also referred to the agreement to sell and documents on record to show that in the present case, there is no receipt showing that an amount of Rs.9000.00 was paid by the plaintiffs to the appellant as earnest money. It is further submitted that even a perusal of Ex.PW3/A, which is a legal notice produced by the plaintiffs, would show that no reference to the mutation/partition proceedings had been made in the same although the said partition/mutation proceedings as per Ex.PX were prior to the date of the said legal notice. It is argued that the fact that the present appellant had only 1/6th share in Rectangle No.92, Killa No.15 is apparent from the jamabandi for the year 1982-83, which had been produced by the plaintiffs themselves as Ex.PW5/B. Learned counsel for the appellant has further referred to order dtd. 22/11/1990, vide which the application filed by respondent Nos.1 to 3 for additional evidence was allowed, to highlight that the observation made in para 2 of the said order is not factually correct. It is submitted that the said order dtd. 22/11/1990, thus, deserves to be set aside. It is argued that substantial cause is in favour of the present appellant and thus, not only the judgment of the First Appellate Court but even the judgment of the trial Court deserve to be set aside and the suit filed by the respondents-plaintiffs deserves to be dismissed.