SHIV CHARAN Vs. SIRI RAM

JUDGEMENT

(1.) THE defendant is in Regular Second Appeal against the judgment and decree dated May 27, 2000, passed by first Appellate Court, vide which the suit of the plaintiff (Siri Ram), was decreed reversing the judgment and decree dated February 15, 1997, passed by the trial Court.

(2.) IN brief, facts of the case are that the plaintiff filed a suit for specific performance alleging therein that defendant No. 1 had entered into an agreement dated November 20,1986 to sell gair mumkin gatwar for a consideration of Rs. 1400/- and had received Rs. 900/- at the time of agreement. The balance amount of Rs. 500/- was agreed to be paid at the time of registration of the sale deed before the Sub Registrar, Pataudi, District Gurgaon, on September 25, 1987. It was further pleaded that on September 25, 1987, the plaintiff went with ready money to Tehsil Pataudi, but the defendant did not turn up. He then made an application to the Sub Registrar, Pataudi to the effect that he had come prepared for execution of sale deed, but the defendant was absent. It was claimed that he was always ready and willing to perform his part of the agreement, but defendant No. 1 has avoided the execution of the sale deed. The plaintiffs, thus prayed for a decree for specific performance of contract of sale dated November 20, 1986 qua the property in question. On December 15, 1990, the plaintiff moved an application under Order 6 Rule 17 of C.P.C. for amendment of the plaint alleging that due to over-sight, he could not take an alternative plea in the prayer clause to the effect that "after the words sale deed, or in the alternative a decree for the recovery of Rs. 900/- along-with usual rate of interest and damages suffered by the plaintiff may kindly be granted in favour of the plaintiff and against the defendant". This application was allowed vide order dated April 08, 1991 subject to payment of Rs. 100/- as costs. Pursuant to that, the plaintiff filed amended plaint dated May 11, 1991 with an alternative prayer mentioned herein above.

(3.) DEFENDANT No. 2 also filed separate written statement and denied the sale in his favour by defendant No. 1. Rather, it was claimed that he had purchased the plot measuring 60'x 15' bearing boundaries different than the one claimed by the plaintiff in the agreement to sell from defendant No. 1 vide sale deed dated January 17, 1992 for a consideration of Rs. 7,000/- which does not form part and parcel of the land in dispute. The plaintiff filed replication and reiterated the stand taken in the plaint.