SUBEDAR KANWAR SINGH Vs. HARNAM SINGH

JUDGEMENT

(1.) This is plaintiffs first appeal directed against the judgment & decree dated 24/03/1990 of learned Additional District and Sessions Judge, Kishangarh Bas, District Alwar whereby, his suit for specific performance of the contract and perpetual injunction was dismissed. In the plaint, it was averred by the plaintiff that defendant No. 1 was khatedar of land bearing Khasra No. 34 measuring 3 bighas 12 biswas situated at Village Kirwari. He entered into an agreement with plaintiff on 01/07/1986 for sale of this land to him for consideration of Rs. 72,000/-. Defendant No. 1 accepted Rs. 16,500/- as advance money and delivered possession of the land to the plaintiff as part performance of the contract. Agreement to sale (Exh. 5) was reduced into writing on a stamp paper in the presence of witnesses and got attested by the Notary Public. Defendant No. 1 also gave a receipt on the same document (Exh. 5) and also signed both the documents. As per agreement to sale, defendant No. 1 was required to get the registered sale-deed executed upto July, 1987. Plaintiff-appellant approached defendant No. 1 many a time asking to execute the registered sale-deed but he refused to perform his part, whereas the plaintiff was always ready and willing to perform his part of performance and to pay the remaining amount of sale consideration. The money was tendered to him within the contract period. Though defendant No. 1 continued to give assurance to the plaintiff to execute the sale-deed in favour of the plaintiff but he did not actually ever execute the registered sale-deed. Plaintiff on 08/08/1987 gave a registered notice (Exh. 1) to defendant No. 1 to execute the sale-deed and to accept the remaining amount. Defendant No. 1 gave reply (Exh. 3) to the notice (Exh. 1) on 17/01/1987, wherein he asserted that (i) plaintiffs brother Shakti Singh has disputed the right of way over land bearing Khasra No. 34 to be sold to Shakti Singh on 30/9/1985, (ii) agreement was lost & (iii) he got an agreement to sale executed on 10/07/1986 for sale consideration of Rs. 72,000/-. He denied having handed over possession of the disputed land to the plaintiff. It was further pleaded that plaintiff went to consult his lawyer at Alwar regarding the notice and its reply. He lost his bag in the train while returning from Alwar to Khairtal, which contained many documents and the original agreement to sale. He immediately reported the matter to the Station Master of Railway Station and at his instance got a public notice published in a newspaper 'Aranadh' dated 10/01/1988 but the agreement could not be traced out. However, photostat copy thereof, which he had got prepared earlier, was filed with the plaint, which is Exh. 5. Specific prayer was made to direct defendant No. 1 to execute the sale-deed in his favour after obtaining remaining amount of sale consideration and further for injunction that defendants be restrained by perpetual injunction from interfering into the possession of the plaintiff over the disputed land or otherwise directing them not to alienate the same to any one. Defendant No. 1 Hamam Singh filed written statement, wherein he admitted having replied to the notice and accepted the execution of agreement to sale dated 01/07/1986. It was further stated by defendant No. 1 that he returned the money to the plaintiff on 09/04/1987 in the presence of Deen Dayal, Karmu and Nabi Khan and the deal between plaintiff and defendant No. 1 was cancelled. Since plaintiff refused to perform his part of the contract, the deal was cancelled. Defendant No. 1 thereafter executed a fresh agreement for sale of the land in dispute in favour of defendants No. 2 & 3 for consideration of Rs. 75,600/-.

(2.) On the basis of the pleadings of the parties, learned trial Court framed as many as five issues, which are as under:--

(3.) Plaintiff examined himself as P.W.1, Prahlad Dutt, Advocate as P.W.2, Birbal as P.W.3 and Karan Singh as P.W.4 and got exhibited six documents such as; notice dated 08/10/1987 as Exh. 1, postal receipt of both the notices as Exh. 2, reply to notice filed by defendant No. 1 dated 17/10/1987 as Exh. 3, notice published in newspaper regarding loss of agreement (Exh. 5) dated 01/07/1986 as Exh. 4, photostat copy of original agreement dated 01/07/1986 and receipt of Rs. 16,500/- as Exh. 5 & previous statement of Bagga Singh as Exh. 6, to substantiate the pleadings. Defendant No. 1 Hamam Singh examined himself as D.W.1, Magh Singh as D.W.2, Nabi Khan as D.W.3 and Bagga Singh as D.W.4. No documentary evidence was produced on behalf of the defendants.