VINOD KUMAR Vs. CHAIN SINGH

JUDGEMENT

(1.) Instant Regular Second Appeal under S.100 CPC, lays challenge to judgment and decree dated 1.12.2007 passed by learned Additional District Judge, Sirmaur at Nahan, HP in Civil Appeal No. 4-N/13 of 2002, affirming judgment and decree dated 3.12.2001 passed by learned Sub Judge, First Class, Court No. 1, Paonta Sahib, in Civil Suit No. 2/1 of 2000, whereby suit having been filed by respondent No.1/plaintiff (hereinafter, 'plaintiff') for specific performance of agreement to sell dated 20.4.1998 (Ext. PW-2/A) came to be decreed.

(2.) Precisely, the facts as emerge from the record are that the plaintiff filed a suit against respondents No. 2 to 8- defendants No. 1 to 5 (hereafter, 'defendants No. 1 to 5') and present appellants-defendants No. 6 and 7 (hereafter, 'defendants No. 6 and 7') in the court of learned Sub Judge First Class, Court No.1, Paonta Sahib, District Sirmaur, Himachal Pradesh, praying therein for specific performance of contract/agreement to sell dated 20.4.1998, qua land comprised in Khasra No. 227/113, measuring 5 Bigha situate in Mohal Kotri, Tehsil Paonta Sahib, District Sirmaur, Himachal Pradesh, surrounded in the North by land of Gian Chand, in the South by the Shamlat land, in the East by the land of Ramesh Chand etc. and in the West by the land of Banwari Lal (hereinafter, 'suit land'). Plaintiff averred that suit land was in possession of defendants No. 1 to 5 as described in Jamabandi for the years 1997-98. On 20.4.1998, defendants No. 1 to 5, agreed to sell the suit land to plaintiff for total sale consideration of Rs.35,000/- out of which Rs.7,000/- was paid to them as part payment of sale consideration whereafter, plaintiff was put in possession of suit land. As per plaintiff, aforesaid defendants by way of agreement to sell agreed to execute sale deed on or before 31.12.1999, after payment of balance sale consideration. Parties agreed inter se them that remaining sale consideration would be paid at the time of registration of sale deed and in case, defendants No. 1 to 5 fail to do so, plaintiff would be at liberty to enforce the agreement to sell through court and in case plaintiff fails to pay the balance sale consideration at the time of execution of sale deed, earnest money of Rs.7,000/- paid by him shall stand forfeited in favour of defendants No. 1 to 5. Plaintiff claimed that he is in possession of suit land with effect from 20.4.1998 and has developed the same by constructing boundary wall. Plaintiff also claimed that he had been always ready and willing to perform his part of contract by paying balance sale consideration to defendants No.1 to 5 and even today he is ready and willing to perform his part of contract to get sale deed executed and registered in his favour. Plaintiff alleged that on 16.11.1999, when he went to Patwari for getting documents, he came to know that on 28.10.1999, defendants No. 1 to 5 have sold the suit land in favour of defendants No. 6 and 7 and as such, plaintiff approached defendants No.1 to 5 with the request to perform their part of contract by executing sale deed of suit land in his favour and offered balance sale consideration of Rs.28,000/- but defendants No.1 to 5 refused to do so. Plaintiff thereafter also approached Tehsildar Paonta Sahib and filed an application before him not to attest the mutation on the basis of sale deed in favour of defendants No. 6 and 7. Plaintiff also filed objections on 16.12.1999 before Assistant Collector 1st Grade Paonta Sahib requesting him not to attest the mutation but to no avail. Plaintiff claimed that mutation attested in favour of defendants No. 6 and 7 is illegal, void and not binding upon him. Plaintiff averred that defendants No. 6 and 7 who had prior knowledge about possession of the plaintiff over suit land are threatening to disposes him on the basis of sale deed. Plaintiff also claimed that since defendants No. 6 and 7 had prior knowledge about his possession over the suit land and agreement to sell executed inter se him and defendants No. 1 to 5, sale deed executed in their favour, confers no right, title or interest on them qua the suit land.

(3.) Defendants No. 1 to 3 and 5 by way of separate written statement, admitted the factum with regard to execution of agreement to sell dated 20.4.1998, as well as receipt of Rs.7,000 as part payment towards total sale consideration of Rs.35,000/-. Defendants No.1 to 3 and 5 also stated in their written statements that the land, which is in possession of the plaintiff and which was agreed to be sold to him was already cultivable and plaintiff had developed the land by digging bore well. They, while admitting that the sale deed qua suit land has been executed in favour of defendants No. 6 and 7, claimed that defendants No. 1 to 5 sold 5 Bigha of land to defendants No. 6 and 7, beyond the land which was agreed to be sold to plaintiff, which is not cultivable on the spot, but defendants No. 6 and 7, taking advantage of illiteracy of the defendants No. 1 to 5, got wrong Tatima of the suit land prepared from the Patwari, and thereafter got sale deed registered on the basis of same. Defendants No. 1 to 3 and 5 also admitted that sale deed qua suit land was to be executed by defendants No. 1 to 5 in favour of plaintiff but now defendants No.1 to 5 are not in a position to execute sale deed in favour of plaintiff and accordingly, they refused to receive balance sale consideration i.e. Rs.28,000/- from him. These defendants specifically stated in their written statement that defendants No. 6 and 7 played fraud with defendants No.1 to 5. Defendants No.1 to 5 also admitted that the plaintiff requested them to execute sale deed on payment of Rs.28,000/- but since defendants No.1 to 5 were not in a position to execute the sale deed in favour of the plaintiff, sale deed could not be executed. Defendants No. 1 to 3 and 5 also did not deny the fact that the plaintiff is not in possession of suit land.