NIRANJAN SINGH Vs. ASHWANI KUMAR

JUDGEMENT

(1.) THIS is an appeal by defendant No. 1. in a suit for possession by way of specific performance of an agreement to sell decreed in favour of the plaintiff by both the Courts below.

(2.) TERSELY , the facts are that the plaintiff (purchaser) entered into an agreement to sell with defendant No. 1 (seller) who alleged himself to be co- sharer in exclusive possession of land measuring 49 kanals comprised in Rect. No. 58 Killa No. 20 (8-0), 2 (7-2), Rect No. 59 Killa No. 22 (8-0), 23 (8-0), 24 (8-0), Rect No. 66 Killa No. 2 (6-12), 6 min janub (4-0), situated in the revenue estate of village Chak Bangawala, Tehsil and District Ferozepur, on 22.1.1991 at the rate of Rs. 50,000/- per acre and had received Rs. 2 lacs from him as earnest money. Inadvertently, the area agreed to be sold was written as 50 kanals 5 marlas though, it was 49 kanals 14 marlas. The agreement to sell was attested by Manohar Singh son of Jagjit Singh and Rajpal son of Daulat Ram both residents of village Mamdot. The date of execution of sale deed was fixed as 31.12.1991 on payment of balance sale consideration. It is alleged that on 31.12.1991, the plaintiff had gone to the office of Sub Registrar, Ferozepur for the purpose of execution of sale deed with balance sale consideration and other necessary expenses but defendant No. 1.did not turn up and the plaintiff got his presence marked by submitting an application dated 31.12.1991. The plaintiff had also served legal notice dated 08.1.1992 through Mr. K.K. Kakkar, Advocate, upon defend0ant No. 1. calling upon him to execute the sale deed in his favour but notice was received back undelivered with a false report obtained by defendant No. 1. in collusion with postal authorities. Defendant No. 1 has transferred a part of the land covered under the agreement in question in favour of Gulab Singh son of Balbir Singh resident of village Chak Bangawala (defendant No. 2.), who had asserted his right as a bonafide purchaser without knowledge of agreement. The plaintiff, thus, claimed that he has always been ready and willing to perform his part of the agreement and through the present suit, he has prayed for a decree of possession by way of specific performance of the agreement to sell 49 kanals and 14 marlas. In the alternative, relief of recovery of Rs. 3,10, 625/- i.e. the breach of terms of the agreement to sell was claimed.

(3.) IN the written statement filed by defendant No. 2, he had averred that he is the bonafide purchaser of the land in question without any knowledge of the earlier agreement. The plaintiff filed replication. On the pleadings of the parties, following issues were framed :-