AVTAR SINGH Vs. SOM NATH AND OTHERS

JUDGEMENT

(1.) The appellants-defendant Nos.7 and 8 are in the present regular second appeal against the judgment and decree of the lower Appellate Court, whereby the suit claiming specific performance of the agreement to sell dated 24.12.1985 has been decreed in toto, whereas the trial Court had partly decreed the suit by confining the decree for return of earnest money of Rs.20,000/- alongwith interest @ 6% from the date of the execution of the agreement till realization.

(2.) The respondents-plaintiffs, namely, Satbir, Balwant and Om Parkash sons of Nihala, instituted the suit on the premise that the defendant Nos.1 to 6 had entered into an agreement to sell dated 24.12.1985 in their favour alongwith defendant No.9 with regard to land measuring 24 kanals as they were owner of 1/4th share in the land measuring 139 kanals 8¾ marlas out of land measuring 557 kanals 15 marlas. Defendant Nos.1 to 4 in the capacity of co-sharer had mortgaged the land measuring 83 kanals 9 marlas bearing Rect. No.25 Killa No.9 to 13, 19, 20, Rec.t No.32 Killa No.1, with the Bank of Baroda, Kaithal, for Rs.50,000/-. Defendant Nos.1 to 5 had already mortgaged the land measuring 12 kanals, representing 240/11155 share, with defendant Nos.7 and 8 for Rs.15,000/-, vide mortgage deed dated 21.05.1984 and in lieu thereof, the defendants-mortgagors were in possession of the specific numbers. Defendant No.6 had also mortgaged land measuring 19 kanals 18 marals, representing 398/11155 share, with defendant Nos.7 and 8, for a sum of Rs.27,000/-, vide mortgaged deed dated 27.05.1982. In total, the mortgaged land was 115 kanals 7 marlas and after adjustment of area so mortgaged the land measuring 24 kanals 1/¾ marla (not mortgaged), was agreed to be sold to the plaintiffs for a valuable sale consideration of Rs.86,500/- against the receipt of earnest money of Rs.20,000/-. The stipulated date for execution and registration of the sale deed was 02.06.1986. The balance sale consideration of Rs.66,500/- was to be paid at the time of registration of the sale deed. The plaintiffs and defendant No.9 had always been ready and willing to perform the part of the agreement, but defendant Nos.1 to 4 colluded with defendant Nos.7 and 8 as by warding off the interest of the plaintiffs, sold the land, in dispute, vide sale deed dated 22.05.1986 (Ex.D-3). In these circumstances, the aforementioned suit was filed on 24.05.1986, as the breach had already been committed before the target date i.e. 02.06.1986.

(3.) Defendant Nos.1 to 4 filed written statement and in para 5, it was stated that the mortgaged land had already been redeemed, but admitted the execution of the agreement to sell and receipt of earnest money etc. Defendant Nos.7 and 8 filed separate written statement and stated that plaintiffs and defendant Nos.1 to 4 were in collusion to harm in view of the fact that they had already an agreement to sell in their favour i.e. prior to the agreement to sell, in question.