KARAM SINGH KAMBOJ Vs. HARBANS SINGH

JUDGEMENT

(1.) APPELLANT -defendant by filing this second appeal is challenging the concurrent findings of fact of the Courts below.

(2.) SHORT point involved in this appeal is, whether the findings recorded by the Courts below are erroneous. First of all, these are findings of fact and are not assailable in second appeal. Secondly, the appellant-defendant pleaded that agreement to sell the disputed land was not enforceable as it was vitiated by fraud and misrepresentation. In the written statement, the appellant-defendant has not pleaded bundle of facts on the basis of which he tried to state on oath in the trial Court that the contract was not enforceable because of fraud or mis-representation practised on him. On oath he stated that he wee friendly with the respondent-plaintiff and at the same time he has also stated that his signatures thumb-marks were obtained when he was under the influence of intoxication. Since this fact was not pleaded in the written statement, both the Courts below have not believed his evidence. Furthermore, the factum of payment of consideration and execution of the agreement to sell is duly proved by the scribe as well as by the attesting witnesses. Hence, the Courts below have not fallen in error in relying on the plaintiff-respondent's aforementioned evidence and recording a finding on issue No. 1 against the appellant-defendant.

(3.) APPELLANT 's learned counsel has vehemently argued that such a suit for possession on the basis of specific performance of contract is not maintainable. To support his contention, he has relied on the judgment of the Privy Council in Promatha Nath Mittra and Ors. v. Gostha Behari Sen and Ors. , A. I. R. 1932 Privy Council 43. That decision does not advance the case of the appellant-defendant. On the facts of the case, it was held by their Lordships of the Privy Council that where a co-sharer professes to grant a lease of the entire estate in a property of which he held a share only in the belief that the other party had already obtained the consent of the other co-sharer, it cannot be deemed that there was a concluded contract, whereby the co-sharer undertook a binding obligation on behalf of himself and other co-sharer to obtain the lease of the property and even though such co-sharer may have received the salami fixed, no suit for specific performance to execute a kabuliyat and give possession can lie against the entire body of the proprietors. In this case, other co-sharers of the joint holding are not parties to the suit.