RAJA RAM Vs. KRISHAN LAL

JUDGEMENT

(1.) THIS is defendant's second appeal challenging the judgment and decrees of the Courts below, whereby suit for specific performance of the agreement dated 28.12.2000 filed by the plaintiff, has been decreed by the Courts below with consequential relief of permanent injunction restraining the defendants from alienating the suit land by way of sale etc. in favour of anybody else than the plaintiff.

(2.) BRIEF facts of the case of the plaintiff are that the defendants agreed to sell the suit land in favour of the plaintiff @ Rs. 2,80,000/- per acre and an agreement to this effect was reduced into writing on 28.12.2000, reciting all the terms and conditions and in part performance thereof, the defendants received a sum of Rs. 1,00,000/- as earnest money from the plaintiff in the presence of witnesses. After having received the earnest honey and admitting the contents of the agreement to be true, the defendants signed the agreement in the presence of marginal witnesses. The remaining sale consideration was to be paid by the plaintiff, at the time of execution and registration of sale deed on the stipulated date i.e. 06.06.2001. It is further pleaded that the plaintiff had always remained ready and willing and is still ready to perform his part of the agreement. 06.06.2001, being holiday, the plaintiff along with balance sale consideration amount and other necessary expenses was present in the office of Sub-Registrar, Fazilka, on 07.06.2001 to get the sale deed executed and registered in his favour and remained present there throughout the day but the defendants did not turn up. The defendants failed to perform their part of the contract. The plaintiff approached and requested the defendants many a times to execute the sale deed in his favour while receiving the balance sale consideration amount, however the defendants failed. The defendants have started threatening the plaintiff that they will alienate the suit property in favour of somebody else. Hence, this suit.

(3.) UPON notice of the suit being given to the defendants, written statement was filed raising preliminary objections that no cause of action accrued to file the suit, that the plaintiff has not come to court with clean hands; that only defendant No. 1 agreed to sell land measuring 12 kanals 10 marlas for consideration of Rs. 4,37,500/-, whereas the defendant No. 2 did not agreed to sell his share. Defendant No. 1 also got his presence marked before the Sub Registrar, Fazilka on 28.05.2001, the date which was fixed for execution of sale deed. It is alleged that the plaintiff got changed the date from 28.05.2001 to 06.06.2001 and also the extent of land in the agreement to sell. It was the plaintiff who after moving the application on 27.9.2001 got the copy of sale deed which was earlier executed by the defendant No. 2 and then got the signature of defendant No. 2 copied on the last page of the agreement to sell. It is also alleged that earlier the suit was filed for permanent injunction which was dismissed as withdrawn on 20.04.2002 by the plaintiff. Taking the objection of suit being bad for non-joinder and mis-joinder of necessary parties, it is also disputed that the suit is not properly valued for the purposes of court fee and jurisdiction and therefore it is contended that the suit is liable to be dismissed with special costs under Sections 35-A CPC. On merits, it is further reiterated that the defendant No. 1 has only agreed to sell his share out of the joint land. It is also contended that the last date of the execution of agreement to sell was 28.05.2001 the day when the defendant No. 1 got his presence marked before the Sub-Registrar. It is contended that the plaintiff is neither entitled to specific performance of the agreement to sell because he was not ready and willing to perform his part of the agreement on 28.05.2001 nor he is entitled to get back the amount of Rs. 1,50,000/- with interest. Denying the averments of the plaint prayer for dismissal of the suit was made.