SANTOSH KUMARI Vs. DEVI SINGH & OTHERS

JUDGEMENT

(1.) The brief facts giving rise to this appeal under order 43 rule 1 of the Code of Civil Procedure (the Code), against the order dated 27.9.1989 passed by the learned Additional District Judge, Jaipur City, Jaipur in Civil Misc. Suit No. 35/89, are as under: -

(2.) Smt. Santosh Kumari wife of Shri Hardayal Singh, the appellant herein, had purchased a plot No. 44-A, Jobner Bagh, Station Road, Jaipur measuring 72' X 30' from its previous owners vide sale deed dated 10.1.1966 registered on 18.1.1966 for Rs. 8,000/-. After purchasing the plot she constructed two storeyed house thereon and started residing in it with her family. A litigation started with the neighbour of the house and, during the course of litigation, some time Hardayal Singh and some time her father-in-law Achal Singh used to attend the court on her behalf and in that connection Achal Singh had taken from her and sale deed of the plot in question. The appellant's husband's brother Padam Singh, who was earlier residing in Assam, came to Jaipur in 1966 and was allowed to reside on the ground-floor portion of the house in question in which he also started his business. The appellant's father-in- law, Achal Singh, who was a government servant and was posted at Jaipur at that time was also residing with the appellant and her husband in the house in question. After some time the appellant shifted to her village Kashoombi, but neither Padam Singh nor Achal Singh vacated the house and in November, 1971 the appellant served a notice through her counsel on them asking them to vacate the house and, on receipt of such a notice, Achal Singh replied that the house in question belonged to him and he had gifted half share therein to Jaideep Singh son of Padam Singh by a registered gift deed dated 2.4.1971. The appellant, thereupon, filed a suit on 30.3.1974 pleading that she was the owner of the plot in question and that Achal Singh had no right to make any gift in respect thereon and praying for a decree for declaration that the gift deed made by Achal Singh in favour of Jaideep Singh was void as against her and a decree for possession of the house against Achal Singh, Padam Singh and Jaideep Singh besides claiming the mesne profits against them. Achal Singh contested the suit on the ground, that he had purchased the plot in question benami in the name of the appellant and that he only constructed the house thereon, out of his earnings, and that he had the right to make the gift in favour of his grand son Jaideep Singh son of Padam Singh. Padam Singh and his son Jaideep Singh also contested the suit on the same ground. The suit was tried by the learned Additional District Judge No. 3, Jaipur City, Jaipur, who, vide the judgment dated 26.3.1985 decreed the suit in favour of the appellant and against the abovesaid three defendants. The appeal filed by Jaideep Singh against the said judgment and decree was registered in this court as S.B. Civil First Appeal No. 42/85 and was dismissed by this Court vide the judgment dated 8.3.1989.

(3.) On 22.8.1989, Devi Singh, his son Prem Singh and his daughter-in-law Smt. Manorama wife of Prem Singh (the plaintiffs) filed the suit, out of which this appeal has arisen, against the defendant-appellant with the allegations that half share received by way of gift deed dated 2.4.1971 by Jaideep Singh from his grand father, was sold by Jaideep Singh by three sale deeds executed on 28.7.1984, 31.7.1984 and 2.8.1984 in favour of Smt. Manorama, Prem Singh and Devi Singh respectively and that they were put in possession of the said portions sold to them by Jaideep Singh and while an appeal against the decree and judgment obtained by the appellant against Jaideep Singh, Padam Singh and Achal Singh was pending in the High Court, the appellant had offered to sell the entire plot in question to the plaintiffs, who had agreed to purchase the same for Rs. 2,11,000/- vide agreement dated 17.4.1986 and a sum of Rs. 51,000/- was paid by the plaintiffs to the appellants and the remaining sum of Rs. 1,61,000/- was to be received by the appellant from the plaintiffs on executing the sale deed within one month from the date of decision of the appeal filed by Jaideep Singh in the High Court and the possession of the portion already purchased by the plaintiffs from Jaideep Singh and delivered to them by Jaideep Singh was ' recognised by the appellant, who had also delivered the possession of the remaining portion of the house to the plaintiffs on receiving the sum of Rs. 51,000/- as advance and that, according to the terms of agreement, in case, Jaideep Singh succeeded in the appeal, the sum of Rs. 51,000/- paid by way of advance to the appellant was not to be refunded by her and that she would send intimation about the decision of the appeal to the plaintiffs within one month from the date thereof. It was alleged that the prices of the properties having appreciated, the intention of the appellant became dishonest and, after decision of the appeal, she refused to sell the property in dispute to the plaintiffs and vide letter dated 20.3.1989 she wrote to the plaintiffs that she did not want to sell the same to them and asked them to receive back the sum of Rs. 51,000/-paid by way of advance to her. They pleaded that they were always ready and willing to perform their part of the contract by paying the balance amount to the appellant and that the appellant was trying to execute the decree obtained by her against Jaideep Singh. Alongwith the suit the plaintiffs also moved an application under order 39 rules 1 and 2 of the Code with a prayer that the appellant be restrained by way of temporary injunction from taking possession of the property in dispute from the plaintiffs or from interfering with their possession in respect thereof in any way.