RUKNA Vs. WALI MOHD.

JUDGEMENT

(1.) WALI Mohmad instituted suit for possession through specific performance of the agreement to sell dated 24.5.1989 against Rukna son of Nikka respecting land measuring 3 bighas situated in the area of Village Azimabad Tehsil Malerkotla on payment of Rs. 38,000/- minus Rs. 35000/- paid as earnest money or on payment of whatever amount is adjudged by the Court payable to Rukna, in the alternative, for the recovery of Rs. 38000/- as damages i.e. Rs. 35000/- as earnest money plus Rs. 3000/- as damages and also for permanent injunction restraining him from interfering with his possession or alienating the land in any manner whatever to any one else. It was alleged in the plaint that on 24.5.1989, Rukna son of Nikka defendant executed an agreement to sell land measuring 3 bighas to him for a sum of Rs. 38000/-. Out of sum of Rs. 38000/-, Rs. 35000/- was paid to him as earnest money. It was stipulated in the agreement that defendant shall execute sale deed in favour of the plaintiff or in whose favour the plaintiff wanted him to execute sale deed, till 25.5.1992. Defendant put him in possession of the land at the spot. It was stipulated in the agreement that in case defendant defaulted and failed to execute sale deed as per stipulations, the plaintiff could compel him to execute sale deed through the process of the Court. Plaintiff had always been ready and willing to pay the remaining sum of Rs. 3000/- to the defendant and obtain from him the sale deed but the defendant defaulted. A week prior to 25.5.1992, the plaintiff tendered to the defendant a sum of Rs. 3000/- and told him that he was ready to go ahead and obtain sale deed but to no effect. On 5.5.1992, the plaintiff served registered AD notice to the defendant calling upon him to execute sale deed as stipulated and also that he was ready and willing to pay him the remaining sum of Rs. 3000/- and spend the stamp and registration charges and to obtain sale deed from him. Defendant gave reply to that notice on 20.5.1992 denying without any basis his liability to perform his part of contract. On 25.5.1992, he reached the office of Sub Registrar with the amount of Rs. 3000/- as also the amount required for stamp and registration charges. He waited for the defendant till 5 p.m. but he did not turn up. Thereupon, he got his affidavit attested from Shri Sehwaj Khan, Advocate (Oath Commissioner) on stamp paper which was indicative of his readiness and willingness to perform his part of agreement and the absence of readiness and willingness to perform his part of the agreement by the defendant.

(2.) DEFENDANT contested the suit of the plaintiff urging that he never executed any agreement to sell dated 24.5.1989 in favour of the plaintiff. It was denied that he received any sum of Rs. 35000/- as earnest money. Agreement set up was false and forged. In fact land measuring 6 bighas 5 biswas belonging to him was under mortgage with the plaintiff in the sum of Rs. 16000/-. On 24.5.1989, defendant came to the Tehsil premises alongwith the plaintiff so that he could repay him the mortgage debt. He repaid him Rs. 16000/- as mortgage debt in the presence of Gurdev Singh; son of Bachan Singh. At the same time, he repaid Rs. 14500/- to that Gurdev Singh also on account of some writing. Plaintiff took advantage of his simplicity and illiteracy and fabricated the so called agreement to sell.

(3.) SUBORDINATE Judge Ist Class, Malerkotla decreed the plaintiff's suit for possession through specific performance on payment of Rs. 38000/- minus Rs. 35000/- paid as earnest money and also for permanent injunction restraining the defendant from alienating land in suit in any manner whatsoever to any body else, in view of his findings, that defendant had agreed to sell land measuring 3 bighas with the plaintiff vide agreement to sell dated 24.5.89 for a sum of Rs. 38000/- out of which amount he had received Rs. 35000/- as earnest money and further the defendant had undertaken to execute sale deed in favour of the plaintiff on or before 25.5.1992 on receiving sum of Rs. 3000/-. It was further found that plaintiff was ready and willing to pay the remaining sum of Rs. 3000/- and obtain sale deed from him and it was the defendant who defaulted and prevaricated in executing sale deed in his favour on receipt of Rs. 3000/- and, thus, complying with the agreement. It was found that plaintiff was present all along in the office of Sub-Registrar on 25.5.1992 with a view to paying the remaining sum of Rs. 3000/- to the defendant and obtaining sale deed from him and it was the defendant who did not turn up with a view to perform him part of agreement. Agreement dated 24.5.89 was found to be genuine and not false, forged or fictitious as set up by the defendant.