OM PARKASH AND ANR. Vs. BHOLI DEVI

JUDGEMENT

(1.) THIS is a regular second appeal filed by the appellants under Section 100 of the CPC against the judgment and decree, dated 1.7.2000, passed by the learned District Judge, Shimla, H.P., vide which, he allowed the appeal filed by the respondent and the judgment and decree passed by the learned Sub Judge, Court No. III, Shimla, dated 30.12.1997, dismissing the suit of the respondent, was set aside.

(2.) BRIEFLY stated, the facts of the case are that Smt. Bholi Devi, respondent, hereinafter also referred to as the plaintiff, filed a suit for specific performance of agreement and for consequential relief of declaration. It was alleged by the plaintiff that she had filed a suit e judgment? Yes. for declaration and injunction against defendant No. 2 and one Mr. Kali Ram and Smt. Parvati Devi, which was pending in the court of learned Sub Judge, Court No. 2, Shimla. It was also alleged that during the pendency of the suit, the appellant, hereinafter also referred to as the defendants, entered into an agreement with the plaintiff on 2.12.1992. As per the agreement, defendant No. 1 had agreed to transfer by way of gift deed, the land measuring 13 bigha and 10 biswas out of the land of his share in Mauja Makrog. The plaintiff had agreed in this agreement to forego her claim in the said suit against defendant No. 2 etc. It was agreed by defendant No. 1 that he would execute the gift deed on 8.12.1992 in favour of the plaintiff and after the execution of such gift deed, the plaintiff was required to withdraw the suit. It was alleged that the plaintiff is willing to perform her part of contract, but defendant No. 1 had failed to perform his part. Defendant No. 1 did not come on 8.12.1992 to execute the gift deed in favour of the plaintiff. A notice was issued by the plaintiff but the defendant did not perform his part of the contract. It was further alleged that defendant No. 1 executed a relinquishment deed, dated 11.12.1994, in favour of defendant No. 2, which is illegal in view of the agreement dated 2.12.1992 and the said relinquishment deed be declared as null and void.

(3.) ON the pleadings of the parties, the issues were settled by the learned trial Court. Out of these issues, issues No. 1 and 2 are the most material and are being reproduced below: