ROSHAN Vs. MAMO

JUDGEMENT

(1.) This is plaintiffs' second appeal whose suit for possession by specific performance of contract of sale was decreed by the trial Court, but in appeal the said decree was modified and the suit was decreed for the recovery of Rs. 42,000/- from Smt. Mamo the vendor.

(2.) Smt. Mamo defendant No. 1 was owner of agricultural land measuring 48 Kanals 13 Marlas. She entered into an agreement to sell the aforesaid land in favour of the plaintiffs at the rate of Rs. 7,000/- per acre and in furtherance of the said agreement, she received a sum of Rs. 17,500/- as earnest money undertaking to execute the sale deed on or before 25.6.1977, on receipt of the balance sale price of Rs. 24,500/-. By a subsequent agreement dated 25.6.1977, the parties extended the date for execution of the sale deed upto 1.1.1978, when Smt. Mamo aforesaid, received a further sum of Rs. 4,000/- as advance. According to the plaintiffs she also collected a further sum of Rs. 2,000/- to be adjusted from the sale price from the plaintiffs. Thus in spite of the binding character of the agreement, Smt. Mamo failed to execute the sale deed by the appointed date and, therefore, she was called upon to appear in the office of the Sub-Registrar on 5.1.1978, in order to execute the sale deed, but she did not turn up. The plaintiffs then served a registered notice dated 28.1.1978 on Smt. Mamo and filed the present suit on 20.2.1978. According to the plaintiffs, they were always willing and ready to perform their part of the contract but Smt. Mamo defendant failed to execute the sale deed as agreed. In the alternative, they also prayed that a decree for the recovery of Rs. 42,000/- as damages in terms of the agreement be passed in their favour.

(3.) In the written statement filed by Smt. Mamo she denied that she executed any agreements Exhibit P.1 or P.2, to sell the suit property in favour of the plaintiffs. According to her, she was an illiterate woman and the property being situate in village Sanwat, she could not look after it personally and moreover, it was not yielding proper income. She alleged that, on being approached by Sadhu son of Ram Rattan Singh, in whom she had full faith, she agreed to lease out the suit land in his favour for a period of five years. When she was brought to Karnal for executing the agreement of lease, her thumb impressions were obtained on certain papers. According to her, she never executed any agreement to sell much less she received any earnest money or had otherwise agreed to execute the sale deed of the property in question by a particular date. After filing her written statement on 19.7.1978, she made an application on 11.4.1979 pointing out that she had already sold the suit land in favour of Chalti and Maya defendants Nos. 2 and 3 on 20.1.1978. This led to the amendment of the plaint in which the aforesaid Chalti and Maya were impleaded as parties. In the written statement filed by them the said vendees pleaded that they had purchased the land bona fide for consideration without any notice of the agreement between the plaintiffs and Smt. Mamo defendant No. 1. They also pleaded that mere agreement to sell the immoveable property did not create any interest in favour of the other party unless the sale deed has been actually executed. They also pleaded that they had no notice or knowledge about the existence of any such agreement. Rather they specifically pleaded that there was an earlier agreement dated 17.10.1976 in their favour for executing the sale deed and in pursuance of the said agreement, the sale deed Exhibit D.W. 3/1 dated 20.1.1978 was executed in their favour.