DALIP SINGH Vs. MEHAR SINGH

JUDGEMENT

(1.) This is defendant's second appeal directed against the judgment and decree of first Appellate Court whereby on acceptance of appeal preferred by the plaintiff, suit of the plaintiff for specific performance of agreement dated 25.5.1987 has been decreed. Trial Court had dismissed the suit on the ground that the same is barred under Order 2 Rule 2, C.P.C.

(2.) Dalip Singh defendant (appellant herein) was the owner of land measuring 69 Kanals 10 Marias i.e. the suit land. He entered into an agreement to sell dated 25.5.1987 with the plaintiff. Under the agreement, sale consideration was fixed at Rs. 1,70,000/-. At the time of execution of agreement, plaintiff paid Rs. 1,25,000/- as the earnest money. Defendant No. 1 was to execute sale deed on or before 25.7.1987. Later on the said date was changed to 25.8.1998. It is the case of the plaintiff that before execution of the agreement, defendant No. 1 was to get income tax clearance certificate from the Income Tax Department and was also required to get mutation of suit land sanctioned in his favour because he had received the land through a Civil Court decree passed in Civil Suit No. 122 of 19.3.1984 in case titled Dalip v. Sarti. Plaintiff alleged that he served three registered A/D notices dated 17.8.1987, 19.8.1987, 20.8.1987 and telegram dated 19.8.1987 calling upon the Defendant No. 1 to execute sale deed in terms of agreement to sell. Defendant No. 1 did not give any reply to the same nor did he give any information as to whether he had obtained the Income-Tax clearance certificate and got sanctioned the mutation in his name or not. Plaintiff alleged that on 24.8.1987 he came to know that defendant No. 1 had purchased three stamp papers of the value of Rs. 3,250/-, Rs. 3,250/- and Rs. 6,000/for selling the land to defendants No. 2 to 4. Plaintiff averred that on coming to know of this, he appeared before the Sub-Registrar and informed him that the defendant No. 1 had already executed an agreement to sell in his favour. Plaintiff further averred that on presentation of the sale deed by the defendant No. 1 in favour of defendants No. 2 to 4. Sub-registrar refused to register the sale deeds. Since plaintiff was apprehending that the defendant No. 1 may sell the land to someone else, he filed suit for injunction on 27.8.1987 and interim injunction was granted in his favour restraining defendant No. 1 from transferring the suit land to any one else. Despite interim injunction, defendant No. 1 transferred the property in favour of defendants No. 2 to 4. Because of transfer of land, plaintiff was left with no alternative but to file suit for specific performance of the agreement to sell. The said suit was filed on 24.11.1987 at Panipat. Suit for injunction was withdrawn on 10.12.1987 i.e. subsequent to the filing of suit for specific performance. Later, it transpired that the Court competent to entertain the suit for specific performance was Civil Judge, (Sen;or Divn.), Gohana, Sub-Division of Panipat. Therefore, plaint was returned accordingly on return, the same was presented before Civil Judge (Senior Div,), Gohana on 21.3.1989.

(3.) Upon notice, defendant No. 1 denied the execution of agreement to, sell. He also said that plaintiff was not ready and willing to perform his part of the agreement. Defendant No. 2 to 4 in their joint written statement took up similar pleas. In addition, they took up the plea that they are bona fide purchasers for consideration.