DHAN SINGH Vs. KANWAR BHAN

JUDGEMENT

(1.) THE plaintiff is in second appeal against the judgment and decree of both the Courts below whereby his suit for specific performance has been dismissed.

(2.) THE case of the plaintiff is that defendants No. 1 and 2 themselves and defendants No. 3 and 4 through their power of attorney defendant No. 2, entered into an agreement to sell with the plaintiff on 27.12.1988 for the sale of plot measuring 800 square yards for a consideration old Rs. 1,20,000/-. As per the plaintiff the entire sale consideration was paid to defendants No. 1 and 2 on the date of agreement against receipt and it was agreed between the parties that the sale deed shall be executed as and when desires by the plaintiff. It was further averred by the plaintiff that defendant No. 9 Jagbir Singh proposed the plaintiff to purchase the said plot by offering him some profit but the plaintiff did not oblige him and defendant No. 9 challenged the plaintiff that he would not get the sale deed executed in his favour. The plaintiff requested defendants No. 1 and 2 to get the sale deed executed and registered but they avoided the same on one pretext or the other. Ultimately, the plaintiff sent a legal notice on 22.2.1989 but in the meanwhile defendants No. 1 to 4 alienated the suit property in favour of defendants No. 5 to 9 by executing different sale deeds on 2.3.1989. The plaintiff has thus challenged the legality and validity of the sale deeds executed by defendants No. 1 to 4 in favour of defendants No. 5 to 9 on the ground that they have violated the terms and conditions of agreement dated 27.12.1988 and also prayed for the specific performance of the agreement for which he was always ready and willing to perform his part of the contract. Defendant No. 5 did not appear before the trial Court, therefore, she was proceeded against ex parte whereas defendants No. 6 to 8 who had appeared but after some time they did not appear, were also proceeded against ex parte. Defendants No. 1 to 4 filed their joint written statement in which they denied the existence of agreement as well as the receipt rather it was alleged that the agreement and the receipt dated 27.12.1988 is an act of fraud and manipulation on the part of the plaintiff as it does not bear the signatures of defendants No. 1 and 2. It was also alleged that the plaintiff has forged the signatures of the defendants on these documents i.e. the agreement and the receipt in collusion with his witnesses. It was averred by defendants No. 1 to 4 that they have sold the plot in question to defendants No. 5 to 9 as they have not entered into an agreement with the plaintiff. Defendant No. 9 Jagbir filed a separate written statement and resisted the suit by taking a stand that defendants No. 1 and 2 had entered into an agreement dated 16.12.1988 with regard to the plot in question and had executed registered sale deed in his favour as well as in favour of defendants No. 5 to 8 on 2.3.1989. He also denied the allegations that he ever visited the house of the plaintiff or threatened him as stated by the plaintiff. The plaintiff filed replication controverting the averments made by defendants No. 1 to 4 in the written statement and reiterated the stand taken by him in the plaint.

(3.) THE trial Court while deciding issue No. 1 held that defendants No. 1 to 4 are the owners in possession of the suit property. With regard to issues No. 2 and 3, it was held that defendants No. 1 to 4 did not execute agreement to sell as well as receipt dated 27.12.1988 and the plaintiff did not pay any amount of Rs. 1,20,000/- to defendants No. 1 to 4. While deciding issue No. 4, it was held that defendants No. 1 to 4 are not bound to perform their part of contract dated 27.12.1988. On issue No. 5, it was held that sale deeds No. 4454 to 4457 dated 2.3.1989 executed by defendants No. 1 to 4 in favour of defendants No. 5 to 9 are valid. Issue No. 6 was decided against the plaintiff and in favour of the defendants to the effect that the plaintiff has no cause of action. With regard to issue No. 7, it was held that agreement and receipt dated 27.12.1988 is an act of fraud, forgery and manipulation. Issue No. 8 was decided to the effect that defendants No. 1 and 2 did not enter into agreement to sell the disputed plot to defendant No. 9 for a consideration of Rs. 1,60,000/- on 16.12.1988. However, it was held that defendant No. 9 has purchased an. area of 320 square yards out of the suit land from defendants No. 1 to 4 by virtue of sale deed dated 2.3.1989 and the finding was returned in favour of the defendants. Issue No. 5-A was also decided against the plaintiff holding that he has no locus standi to challenge the act of defendants. The first Appellate Court also returned a finding of fact to the effect that the agreement and receipt dated 27.12.1988 have not been proved to be executed by the defendants in favour of the plaintiff.