GURDIAL SINGH Vs. HAZURA SINGH

JUDGEMENT

(1.) THIS Regular Second Appeal has been preferred by the defendant in the suit No. 567/9-8-1978 filed by respondent no. 1-plaintiff, Hazura Singh (now deceased)for specific performance of contract. Briefly stated the facts as apparent from the record, are that Ram Kishan and Gurdial Singh, appellants/defendants nos. 1 and 2, respectively, executed an agreement to sell dated 30-12-1976 in favour of Hazura Singh, plaintiff-respondent for the sale of land measuring 20k-8m at the rate of Rs. 1000/- per bigha. In terms of the agreement, sale deed was to be executed and registered by 31-12-1977. The agreement further stipulated that on failure of the vendors to execute the sale deed, vendees are entitled to recover advance amount along with damages at the rate of Rs. 100/- per bigha. The agreement also specifies payment of advance amount of Rs. 7900/ -. It is admitted case of the parties that the agreement in question was never implemented by the parties. In the meanwhile, a Suit No. 849/29-12-1977 came to be filed by defendants Nos. 4 and 5 wherein a collusive decree was passed in respect of the suit land in favour of Devinder singh and Inderjit Singh, minor sons of Ram kishan. On the basis of this decree, land in question was transferred in favour of the minors named above.

(2.) ON failure of the vendors/appellants to execute the sale deed vendee Hazura singh-respondent filed suit for specific performance of contract on the basis of the agreement to sell dated 30-12-1976, and pleaded that he was and is ready and willing to pay the balance sale consideration in terms of the agreement. He also mentioned that on the date fixed for execution of the sale deed, he approached the Sub-Registrar, sirhind with the balance sale consideration for getting the sale deed executed in his favour. On finding that defendant Nos. 1 and 2 did not turn up, he filed the affidavit before the Sub-Registrar and got his presence marked. It is specifically mentioned that since the sale deed was to be executed on 31-12-1977, the said date and 1st of January, 1978, being holidays, he approached sub-Registrar, Sirhind on 2-1-1978. He had earlier served a notice dated 26-12-1977 and another notice dated 3-6-1978 was also served asking the vendors to execute the sale deed. The plaintiff also challenged decree dated 2-1-1978 passed in Civil Suit No. 849 dated 29-12-1977 in favour of minor sons of Ram Kishan who were also impleaded as defendant Nos. 4 and 5 in the suit. The defendants-vendors in their written statement denied the execution of the agreement to sell and also the payment of advance money of rs. 7900/- by the proposed vendees. During the course of the trial, it was brought on record that the defendants/vendees borrowed an amount of Rs. 7900/- as loan from the plaintiff-vendee and executed a pronote and a receipt for a sum of Rs. 7900/ -. The amount was to be repaid by 25-12-1977. It was further agreed that if they fail to do so, they will execute the sale deed in favour of the plaintiff in respect of the suit land by 31-12-1977. This fact was duly incorporated in the agreement to sell. During the trial, the trial Court framed as many as seven issues which read as under :-

(3.) WHILE deciding issue No. 1, the trial court returned findings that the defendants/respondents borrowed a sum of Rs. 7900/- from the plaintiffs and executed a pro note and a receipt which were duly proved in evidence as Exs. P-1 and P-2, respectively. It also returned a finding that the defendants had executed an agreement simultaneously on the same date on which pronote and receipt were executed undertaking to sell the land measuring 20 kanals and 8 marlas, in the event of their failure to pay the loan amount of Rs. 7900/ -. Based upon above findings, the trial Court decreed the suit for specific performance. Vide judgment and decree dated 14-8-1981, the trial court directed the plaintiff to pay Rs. 4337. 50p to the defendant Nos. 1 and 2 by 31-8-1981 and a direction was issued to the defendant Nos. 1 and 2 to execute the sale deed in favour of the plaintiff by 10-9-1981, failing which the plaintiff shall be entitled to get the sale deed executed through Court in terms of the agreement. The said judgment and decree dated 14-8-1981 became subject-matter of challenge in two appeals, one preferred by the defendants-vendees being CA No. 23-T/1981 and other filed by hazura Singh, plaintiff against the defendants. The defendants challenged the decree for specific performance as granted by the trial Court whereas the plaintiff filed the appeal for modification of the decree to the extent that he is entitled to recover damages from the defendants and the amount payable as well as sale consideration should be Rs. 3112/- after deducting Rs. 1225/-as an amount of damages. The First Appellate Court vide its judgment and decree dated 8-8-1983 dismissed the appeal filed by the defendants and allowed the appeal filed by the plaintiff and consequently directed the defendants to execute sale deed in favour of the plaintiff within one month from the date of the order, failing which the plaintiff shall be entitled to get the sale deed executed through Court. The First Appellate court also recorded in its judgment that the plaintiff has deposited a sum of Rs. 4337. 50p in the trial Court in terms of its judgment. Both these judgments have been assailed in the present Regular Second Appeal.