TH SHANKER SINGH Vs. DHARMDAS

JUDGEMENT

(1.) This is a defendant's special appeal under Sec. 18 of the Rajasthan High Court Ordinance, 1949 preferred against the judgment of a learned Single Judge maintaining the decree of the trial court for specific performance of the agreement.

(2.) Inside Ajmeri Gate, Thakur Boraj Ka Rasta, Chowkri Modi Khana, Jaipur City, there is situated a Haveli known as Boraj Thakur Ki Haveli with land measuring 87.6' x 27.6' at its back towards the south adjoining the Ganda Nala. The said property was owned and possessed by Th. Vijay Singh of Boraj. After Thakur Vijay Singh, Thakur Ganpat Singh (father of Thakur Shanker Singh, plaintiff) owned and possessed the said Haveli including the said land being heir of Thakur Vijay Singh. After death of Thakur Ganpat Singh, a partition took place between Thakur Shanker Singh and Thakur Sajjan Singh sons of Thakur Ganpat Singh and the aforesaid land measuring 87.6' x 27.6' came to the share of Thakur Shanker Singh. Since then the Chhoti Haveli and the said land was owned and possessed by Thakur Shanker Singh, defendant. After attaining majority, Shanker Singh executed a registered agreement dated 8.2.61 to sell the said land along with portion of Chhoti Haveli (in which Dharamdas plaintiff was residing as a tenant and doing business) for Rs. 32,000/-. In pursuance of the agreement, Dharamdas, plaintiff paid Rs. 3,000/- on 8.2.61 by way of earnest money. Under the terms of the said agreement, Dharamdas plaintiff, was to close the existing passage from towards north and had to open the gate towards sough e.g. towards the side of the Ganda Nala. Despite efforts the opening of the gate could not succeeded by the parties on account of the claim set up by the Municipal Council that the said land had been handed over to the Rehabilitation Department of Public Works Department. Still, the parties stood by their agreement. In reply to the claim of the Municipal Council, the plaintiff and defendant jointly represented to the Superintending Engineer vide letter dated 6.3.61 that the land was that of Shanker Singh and the same had been agreed to be sold to Dharamdas. Public Works Department's authorities did nothing to settle the matter. Th. Shanker Singh Boraj, defendant, and Dharamdas, plaintiff filed a joint writ petition in the High Court for direction to the Municipal council to issue a writ restraining the State Government and from causing obstruction in the right of the aforesaid petitioners (plaintiff and defendant). By holding that since there was a dispute of title of the land regarding which writ petition had been filed, the High Court dismissed the same vide judgment dated 6.9.62 (Ex. 16).After the dismissal of the writ petition, a joint suit for declaration against the State of Rajasthan and Municipal Council, Jaipur was instituted in the Court of Civil Judge, Jaipur City and the prayer made was for declaration that the land lying towards the south of the said Haveli measuring 87.6' x 27.6' adjoining the Ganda Nala belonged to Th. Shanker Singh, defendant. This suit was decreed vide judgment dated 30th March, 1966 (Ex. 18). Aggrieved by the judgment of the Civil Judge, a first appeal was filed under Section 96, CPC, which was dismissed vide judgment dated 29.3.67 (Ex. 21).

(3.) Before all these happened, after the agreement dated 8.2.61, the parties had entered into another agreement dated 6.3.62(Ex. 7) making suitable modifications and alterations in the terms and conditions of sale-deed. The changes made by the agreement dt. 6.3.62 are as follows : On 8.7.71, the plaintiff filed a suit for specific performance of the contract. The j plaintiff alleged that as no sale-deed in pursuance of the agreement dated 8.2.61, which merged with the second agreement dated 6.3.62, was executed, he was entitled to get the decree. The salient features of the two agreements are that: