SHRIMATI SURJIT KAUR BAJWA Vs. CAPT. KOHAR SINGH

JUDGEMENT

(1.) THIS first appeal is directed against the judgment and decree of the Subordinate Judge First Class, Pathankot, dated November 7, 1973, dismissing the suit of the plaintiff.

(2.) BRIEFLY the facts are that Capt. Kohar Singh, defendant No. 1, who was the owner of the land in dispute, agreed to sell it to the plaintiff as per agreement dated June 24, 1969, for a consideration of Rs. 45,000/ -. An amount of Rs. 18,000/ - was paid in cash as earnest money by the plaintiff to the said defendant at the time of execution of the agreement and the balance was to be paid by her at the time of registration of the sale deed. It was agreed that the sale deed would be executed by defendant No. 1, after the suit between defendant No. 1 and Ranjit Singh, defendant No. 2, regarding recovery of rent, pending in the Court of S.D.O (Civil) -cum -Assistant Collector First grade, Pathankot, was decided. It was further agreed that if the breach of the agreement was committed by plaintiff, she would forfeit her earnest money and in case it was committed by defendant No. 1, the plaintiff would be entitled to Rs. 18,000/ - by way of damages in addition to refund of Rs. 18,000/ - paid by her as earnest money.

(3.) THE suit was contested by the defendants. Defendant No. 1 inter alia pleaded that he had been paid Rs. 3000/ - and not Rs. 18000/ - as earnest money and that he was always ready and willing to perform his part of the agreement, but the plaintiff failed to perform her part. He further pleaded that the plaintiff wrongly insisted upon the delivery of actual possession as a pre condition of sale. In the circumstances he prayed that the suit be dismissed. Defendant No. 2 pleaded that there was no privity of contract between him and the plaintiff and consequently the suit was liable to be dismissed on this ground alone. He further pleaded that he was the real owner of the property and defendant No. 1 was a Benamidar and, therefore, the compromise arrived at between the defendants was not collusive. He also prayed for the dismissal of the plaintiff's suit.