MANOJ KUMAR & OTHERS Vs. CHINA & OTHERS

JUDGEMENT

(1.) The plaintiffs instituted a suit against the defendants, claiming therein a decree for declaration besides a decree for specific performance of contract, as well as, a decree for permanent prohibitory injunction was claimed. The suit of the plaintiffs stood dismissed by the learned trial Court. In an appeal carried therefrom by the plaintiffs before the learned First Appellate Court, the latter Court allowed the appeal, whereupon, it partly decreed the suit of the plaintiff, for recovery of Rs.48,800/- along with proportionate costs and future interest at the rate of 6% per annum, from the date of institution of the suit till full and final realization of the decretal amount. In sequel thereto, the defendants/appellants herein are driven to institute the instant appeal herebefore.

(2.) Briefly stated the facts of the case are that the plaintiffs filed a suit for declaration and specific performance of contract dated 12.1.1983 against the defendants. The case of the plaintiffs is that the suit property comprised in Khasra No.9167/4057 measuring 58-4 square yards, Khata-Khatoni No. 467/626 is recorded and shown in the ownership of Shri Madho Ram, predecessor-in-interest of the defendants. Defendant No.1, who is minor is residing under the care and custody of defendant, his mother and her interest is not adverse to the interest of the minor. Hence, defendant No.3 is appointed as guardian of minor. That their predecessorin-interest late Sh. Gulam Mohammad was tenant prior to agreement to sell dated 12.1.1983. On 12.1.1983, the predecessor-in-interest of the plaintiffs purchased the disputed property for a consideration of Rs.60,000/- and agreement to sell in this behalf was executed by late Shri Mdho Ram, the predecessor-in-interest of the defendants.

(3.) The defendants contested the suit and filed written statement, wherein they have taken preliminary objections qua limitation, estoppel and locus standi. On merits, they refuted the claim of the plaintiffs. It has been averred that after the death of Shri Madho Ram, their predecessor-in-interest, they have become owners of the suit property and mutation of inheritance has also been attested in their favour. Shri Gulam Mohammad, predecessor-in-interest of the plaintiffs was tenant of the disputed property which controversy has been finally settled by the learned Appellate Authority vide judgment dated 18.9.1998 passed in Civil Appeal No. 13 of 1997. It has been averred that no agreement was executed by late Shri Madho Ram in favour of late Shri Gulam Mohammad and the so called agreement is forged and fictitious document which has been manipulated by the plaintiff. The receipts relied upon by the plaintiffs are also forged as late Shri Madho Ram never received any amount from late Shri Gulam Mohammad. It has been averred that late Shri Gulam Mohammad was tenant of the disputed property and after his death, tenancy has come to an end and defendants No.1 to 3 have become owners of the disputed property. The earlier suit instituted by the plaintiffs for specific performance and declaration was dismissed as withdrawn and no application was moved by the plaintiffs for restoration of the suit and no permission was sought by the plaintiffs from the court to file the second suit and as such, the extant suit is not maintainable. It has been averred that late Shri Gulam Mohammad also never paid installments of the loan amount on behalf of late Shri Madho Ram. The plaintiffs are in possession of the suit property as tenants.