DARYA SINGH Vs. JITA

JUDGEMENT

(1.) This is defendant's second appeal against whom the suit for specific performance of the contract has been decreed by both the Courts below.

(2.) Lilu, defendant (now deceased) agreed to sell his land measuring 10 kanals 13 marlas vide agreement dated July 6, 1980 to the plaintiff Jita who also died during the pendency of the suit. The said agreement was for a consideration or Rs. 20,000/- out of which Rs. 11,000/- were received by him from the plaintiff at the time of the agreement and the remaining amount was to be paid at the time of the registration of the sale deed which to be executed and registered on or before September 22, 1980. On September 22, 1980. Jita, plaintiff paid the balance consideration of Rs. 9,000/- to Lilu, defendant, and accordingly the agreement dated September 22. 1980 was executed between them according to which, the sale deed was to be executed and registered on or before January 22, 1981. On that day, the plaintiff went to the office of the Sub-Registrar, but Lilu defendant did not turn up; hence he filed the present suit, on September 17, 1981. In the written statement filed by Lilu, defendant, it was pleaded that the land measuring 4 kanals had already been sold by the heirs of Hari Singh to the sons of Jita, plaintiff, which fact was known to him, but he got the said land included in the agreement in order to pressurise him. However, the factum of the execution of the agreement. in dispute, was accepted by him, but it was alleged that only Rs 5,000/- were paid as the earnest money. According to him. the sale was to be for Rs. 15,000/- in respect of the land measuring 6 kanals 13 marlas only. He also pleaded that the agreement was got executed by playing fraud. He denied that he received a sum of Rs. 11,000/- as the earnest money as alleged in the plaint. The subsequent vendees pleaded that the suit in the present form was not maintainable and that it was also barred by time. The trial Court found that Lilu defendant executed the agreement to sell regarding 10 kanals 13 marlas of land for Rs. 20,000/- and that no fraud was played on him at the time of the execution of the agreement. It was further held that the plaintiff -was always ready and willing to per, form his part of the contract. Ultimately, the plaintiff's suit was decreed for 6 kanals 13 marlas of land. As the entiresate, price had already been paid it was directed that defendants Nos. 2 to 5 will execute and register the sale deed regarding this land in favour of the plaintiffs within 3 months. Expenses of stamp and registration etc. were to borne by the plaintiffs. Dissatisfied with the same, both the parties filed two separate appeals. The learned Additional District Judge affirmed the findings of the trial Court on all the issues and, thus maintained the decree passed by the trial Court. Dissatisfied with the same, the subsequent vendee has filed this second appeal.

(3.) This appeal was admitted on the question as to whether the suit for specific performance is maintainable or not because earlier the plaintiff filed the suit for preemption and failed.