JOGINDER SINGH Vs. SUDESH KUMARI

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the judgment and decree dtd. 6/4/2011 passed by learned Additional District Judge, Una, Himachal Pradesh in Civil Appeal No. 68/2010, affirming judgment and decree dtd. 6/9/2010 passed by learned Civil Judge (Junior Division), Court No. (1), Amb, District Una, Himachal Pradesh in Civil Suit No. 237/99, titled Joginder Singh and others vs. Smt. Brahmi Devi, whereby suit for specific performance of agreement to sell having been filed by the appellants-plaintiffs (hereinafter, 'plaintiffs'), came to be dismissed, plaintiffs have approached this Court in the instant appeal filed under S.100 CPC, praying therein to decree their suit for specific performance, after setting aside judgments and decrees passed by both the learned Courts below.

(2.) For having bird's eye view of the matter, certain undisputed facts as emerge from the record are that the plaintiffs filed a civil suit seeking therein a direction to the respondents/defendant (hereinafter, 'defendant') to execute the sale deed qua land measuring 12 Kanal 1 Marla, out of land measuring 0/91/46 hectares bearing Khewat No. 118, Khatauni No. 323, Khasra Nos. 3476, 3477, 3478, 3486, 3487, 3490, 3491, 3492, 3493, 3494, 3495 and 3496 corresponding to old Khasra No. 2625, as entered in Nakal Jamabandi for the years 1994-95, situated in Up Mohal Ram Nagar, Mauja Nakroh, Tehsil Amb, District Una, Himachal Pradesh (hereafter, 'suit land') and in the alternative, to grant relief for recovery of Rs.36,000.00. In the aforesaid suit, plaintiffs averred that their predecessor-in-interest, Shri Hakam Singh was owner of half share alongwith defendant qua land measuring 24 Kanal 2 Marla but was in exclusive possession of whole of the land. Plaintiffs claimed that after the death of Hakam Singh, plaintiffs Nos. 1 and 2 alongwith their brother, Bakshi Ram came into possession, whereafter they sold their share i.e. 12 Kanal 1 Marla to Smt. Vinod Kumari, Om Parkash and Ranjit Singh, and rest of the land measuring 12 Kanal 1 Marla remained in their possession. It is further averred in the plaint that a suit titled Mehar Singh vs. Hakam Singh, which was pending before the learned Sub Judge First Class, Una, was decided in favour of Hakam Singh and Brahmi Devi on 5/5/1983, whereby predecessor-in-interest of the plaintiffs was held to be in possession of the land measuring 24 Kanal 2 Marla. It is further averred that said case was contested on behalf of the defendant by her Power of Attorney, Shri Daulat Ram and total expenses of the said case were incurred by predecessor-in-interest of the plaintiffs. Plaintiffs further averred in the suit that on 30/5/1987, Daulat Ram, Power of Attorney of defendant entered into an agreement to sell the above said half share i.e. 12 Kanal 1 Marla for a sum of Rs.18,000.00 to the plaintiffs and received Rs.12,000.00 in lump sum after deducting Rs.6,000.00 i.e. litigation expenses incurred by their predecessor-in-interest in earlier litigation. Time for execution of sale deed was left open. It is further averred by the plaintiffs that the defendant despite repeated requests by them to execute sale deed, refused to do so, rather started demanding huge amount on the ground that the prices of the land have increased manifold.

(3.) Since the defendant Brahmi Devi expired during the pendency of the suit, her legal representative, namely Smt. Sudesh Kumar, came to be impleaded as defendant in place of Brahmi Devi, who while refuting the claim of the plaintiffs, on the grounds of maintainability, cause of action, limitation and estoppel, also denied the case of the plaintiffs on merit. Defendant while admitting that Hakam Singh was owner-in-possession to the extent of half share and Brahmi Devi was in possession of another half share also admitted that 12 Kanal 1 Marla was sold to Smt. Vinod Kumari etc. However, she denied that the litigation expenses were borne by predecessor-in-interest of the plaintiffs and Brahmi Devi (original defendant), had assured the predecessor-in-interest of the plaintiffs about payment of any expenses made by him in earlier suit. Defendant also claimed that Daulat Ram never executed agreement to sell the share of defendant nor he was authorized to do so by the defendant. Defendant claimed that neither Brahmi Devi nor her legal representative received any sale consideration rather, during her life time, Brahmi Devi had filed an application for partition of suit land, which was decided on 22/8/1997.