JOGINDER SINGH Vs. SALINDER SINGH AND ORS.

JUDGEMENT

(1.) THIS regular second appeal is directed against the judgment and decree dated 8.5.1996 passed by the learned District Judge, Sirmaur at Nahan in Civil Appeal No. 57 -N/13 of 1995/1993.

(2.) MATERIAL facts necessary for the adjudication of this regular second appeal are that the Appellant/Plaintiff (hereinafter referred to as "the Plaintiff" for convenience sake) has instituted a suit in the Court of learned Sub Jude, Sirmaur at Nahan against the Respondents/Defendants (hereinafter referred to as "the Defendants" for convenience sake), for declaration, injunction and for specific performance of the contract. The case of the Plaintiff, in a nutshell, was that late Shri Jiwan Singh, father of Defendants No. 1 to 3 and his father, Partap Singh were brothers. Jiwan Singh owned and possessed 5 bighas 13 biswas of land comprising in Khasra No. 124/22 exclusively and 1/6th share in the land comprised in Khasra Nos. 25, 26, 27, 28 and 33 measuring 21 bighas 17 biswas calculated at 3 bighas 13 biswas situate in village Uttamwala -Baraban, Tehsil Nahan. Thus, he was owner of 9 bighas 6 biswas of land. Jiwan Singh entered into an agreement with the Plaintiff to sell his 9 bighas of land at the rate of Rs. 2,000/ - per bigha for a total consideration of Rs. 18,000/ - on 5th June, 1982 vide Ex.PW -1/A. The possession was delivered by him to the Plaintiff of the land measuring 5 bighas 13 biswas, which was in his exclusive possession after obtaining an advance payment of Rs. 12,000/ -. He agreed to deliver the possession of the remaining land measuring 3 bighas 7 biswas after partition and taking delivery of possession from one Mohan Singh. The balance amount of Rs. 6,000/ - was to be paid at the time of registration of sale deed. It was also agreed according to the Plaintiff that in case Jiwan Singh could not get the possession of the remaining land then the land measuring 5 bighas 13 biswas, possession of which has been delivered to the Plaintiff would be deemed to have been sold for the sum of Rs. 12,000/ - paid and the Plaintiff will get the sale deed of 5 bighas 13 biswas executed and registered in his favour. Jiwan Singh died in the month of March, 1986. He did not take any steps to get possession of 3 bighas 7 biswas of land from Mohan Singh. Plaintiff requested Defendants No. 1 to 4, sons and daughter of Jiwan Singh to fulfill the promise made by their father. However, later on it transpired that Defendants No. 1 to 4 had executed sale deed in favour of Respondents No. 5 to 9 (hereinafter referred to as Defendants in the same capacity, i.e. "Defendants No. 5 to 9" for convenience sake) in respect of 5 bighas 13 biswas of land comprising in Khasra No. 124/22. It is in these circumstances that the present suit was filed by the Plaintiff.

(3.) ISSUES were framed by the trial Court on 4.4.1989. The trial Court dismissed the suit on 16.11.1992. Thereafter the Plaintiff filed an appeal before the learned District Judge, Sirmaur at Nahan. The learned District Judge partly allowed the appeal and the judgment and decree dated 16.11.1992 passed by learned Senior Sub Judge, Nahan was set aside and while dismissing the claim of Plaintiff for specific performance of agreement to sell dated 5.6.1982 (Ex.PW -1/A), a decree for refund of earnest money of Rs. 12,000/ - was passed in favour of the Plaintiff against Defendants No. 1 to 4. Hence this regular second appeal.