Regular Second Appeal No. 3768 of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3768 of 2007 Date of decision : October 08, 2010 Darbara Singh ....Appellant versus Madan Mohan and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. B.R. Mahajan, Advocate, for the appellant Mr. Sumeet Narang, Advocate for Mr. Mukesh Berry, Advocate, for respondent nos. 3 and 4 Remaining respondents ex parte. L.N. Mittal, J. (Oral) Darbara Singh plaintiff has filed the instant second appeal. Appellant-plaintiff filed suit for possession of 17 kanals 18 marlas land in suit by specific performance of agreement to sell and in the alternative for the recovery of ` one lac. The plaintiff alleged that defendant no. 1 as co-owner of the joint land agreed to sell the suit land measuring 17 kanals 18 marlas to the plaintiff at the rate of ` 2,50,000/- per acre and received ` 50,000/- as earnest money and executed agreement dated 14.2.1995. The plaintiff was to pay further amount of ` 1,50,000/- to defendant on 14.3.1995 and balance sale price was to be paid at the time of Regular Second Appeal No. 3768 of 2007 -2- execution and registration of the sale deed upto 30.5.1996. Plaintiff always remained ready and willing to perform his part of the contract. On 14.3.1995, the plaintiff asked defendant no. 1 to receive ` 1,50,000/- in terms of the agreement but defendant no. 1 resiled from the agreement. Plaintiff even went to the office of Sub Registrar on 14.3.1995 with requisite amount of ` 1,50,000/- but defendant no. 1 did not turn up. On the other hand, the plaintiff learnt that the suit land had already been attached by Assistant Registrar Cooperative Societies in loan case of defendant no. 1. Defendant no. 1 sent notice dated 17.5.1995 to the plaintiff asking him to pay ` 1,50,000/-. The plaintiff sent reply to the notice mentioning about the attachment of the land which fact had not been disclosed by defendant no. 1 to the plaintiff at the time of agreement. The plaintiff expressed his readiness and willingness to pay the balance sale consideration subject to defendant no. 1 getting the land freed from encumbrance. Plaintiff filed civil suit no. 62 of 15.6.1995 seeking to restrain defendant no. 1 from alienating suit land to any body else. Temporary injunction dated 16.8.1995 was granted in the said suit. The plaintiff went to the office of Sub Registrar on 30.5.1996 with requisite money to get the sale deed executed and registered in terms of the agreement but defendant no. 1 did not turn up nor defendant no 1 informed the plaintiff about clearance of loan and vacation of attachment of the suit land. Plaintiff even sent notice dated 8.6.1996 to defendant no. 1 for executing the sale deed in terms of the agreement. However, defendant no. 1 and his brother Brij Mohan sold the suit land to defendant nos. 2 to 7 vide two sale deeds dated 17.7.1996 and 19.7.1996. Defendants no. 2 to 7 were Regular Second Appeal No. 3768 of 2007 -3- aware of the agreement in favour of the plaintiff. Sale deeds in favour of defendants no. 2 to 7 are, therefore, not binding on the plaintiff. Defendant no. 1 admitted the execution of the impugned agreement and also admitted that he was co-owner of the suit land. Defendant no. 1, however, pleaded that the plaintiff failed to pay ` 1,50,000/- on 14.3.1995 as per terms of the agreement. In spite of notice dated 17.5.1995 sent by defendant no. 1, plaintiff failed to pay the said amount. Defendant no. 1 was in dire need of the money to clear the loan. Accordingly, the impugned agreement was repudiated and defendant no. 1 entered into agreement dated 8.6.1995 for sale of the suit land to defendants no. 2 to 7 and received ` 1,50,000/- and cleared his debts in installments on 15.6.1995, 16.6.1995, 11.7.1995 and 29.8.1995. Pursuant to subsequent agreement defendant no. 1 and his brother had sold the suit land to defendants no. 2 to 7. Defendants no. 2 to 7 claimed themselves to be bonafide purchasers of the suit land for consideration without notice and knowledge of the impugned agreement in favour of the plaintiff. Learned Civil Judge (Senior Division), Gurdaspur vide judgment and decree dated 25.2.2002 partly decreed the plaintiff's suit for alternative relief of recovery of ` 50,000/- with interest @ 6% per annum with effect from 14.2.1995 i.e. the date of agreement till recovery. First appeal preferred by the plaintiff has been allowed partly by learned Additional District Judge (Adhoc), Fast Track Court, Gurdaspur vide judgment and decree dated 23.7.2007 and thereby sale deeds Ex. D1 and D2 executed by defendant no. 1 and his brother Brij Mohan in favour of defendants no. 2 to 7 have been set aside to the extent of half share in the Regular Second Appeal No. 3768 of 2007 -4- suit land belonging to defendant no. 1 but the said sale deeds have been upheld regarding remaining half share of Brij Mohan in the suit land. Accordingly, defendant no. 1 along with defendants no. 2 to 7 have been directed to execute sale deed of half share of the suit land in favour of the plaintiff. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that total share of defendant no. 1 Madan Mohan in the joint land was much more than 17 kanals 18 marlas i.e. the area of the suit land and therefore, the plaintiff's suit deserves to be decreed regarding the entire suit land. Learned counsel for the respondents could not advance any meaningful arguments to controvert the aforesaid contention of counsel for the appellant. Following substantial question of law arises for determination in the instant second appeal :- “Whether judgment and decree of the lower appellate court decreeing the suit of the plaintiff-appellant for only half share of the suit land and not also for the remaining half share are illegal and unsustainable ?” Perusal of jamabandi Ex. P16 for the year 1993-94 reveals that defendant no. 1 and his brother Brij Mohan had both 1/4th share each in 149 kanals joint land. Accordingly, the share of defendant no. 1 in the joint land was 37 kanals 5 marlas i.e. much in excess of 17 kanals 18 marlas land Regular Second Appeal No. 3768 of 2007 -5- in suit. Accordingly, the suit of the plaintiff-appellant is required to be decreed for 17 kanals 18 marlas land to be adjusted out of the share of defendant no. 1 in the joint land. Sale deeds in favour of defendants no. 2 to 7 regarding half share of defendant no. 1 in the suit land have been rightly held to be not valid by the lower appellate court. At the same time, sale deeds regarding half share of Brij Mohan in the suit land have rightly been not set aside by the lower appellate court because Brij Mohan is not party to the impugned agreement. Consequently, sale deeds in favour of defendants no. 2 to 7 qua half share of Brij Mohan are not liable to be set aside. However, in spite thereof, plaintiff's suit is required to be decreed for 17 kanals 18 marlas to be adjusted out of the share of Madan Mohan defendant no. 1 only. There is no reason for not granting said relief to the plaintiff-appellant. Judgment and decree of the lower appellate court to the contrary are illegal and liable to be modified to this extent. Substantial question of law framed hereinbefore is answered accordingly. For the reasons aforesaid, the instant second appeal is allowed. Judgment and decree of the lower appellate court are modified. Suit of the plaintiff is decreed regarding 17 kanals 18 marlas land to be adjusted out of the share of defendant no. 1 in the joint land. ( L.N. Mittal ) October 08, 2010 Judge 'dalbir'