RAJ KUMAR Vs. SHANTI SAROOP GANDHI

JUDGEMENT

(1.) THE unsuccessful plaintiff has come up in second appeal against the judgment and decree of the first appellate court affirming on appeal those of the trial court whereby his suit for recovery of Rs. 11450/- was dismissed.

(2.) THE facts:-Predecessor-in-interest of respondent No. 1 executed an agreement to sell dated February 21, 1988 in favour of the plaintiff and defendant No. 2. He agreed to sell land measuring 124 acres situated in village Talwandi Rana @ Rs. 820/- per acre. Rs. 10,000/- were paid as earnest money to him and it was agreed that the sale deed would be executed on or before June 30, 1968. The agreement recited that in case the vendor failed to execute the sale deed within the time prescribed he would be liable to pay to the vendees Rs. 10,000/- the advance money and Rs. 10,000/- more as damages. In case, the vendees failed to get the sale deed executed in their favour the vendor would forfeit the earnest money paid to him. It was further stated in the plaint that the vendor agreed to deliver vacant possession of the land at the time of execution of the agreement to Sell but later on he found himself incapable of delivering the vacant possession since it was in possession of the tenants and, therefore, he failed to execute the sale deed in favour of the plaintiff and defendant No. 2. On June 26, 1968, Sawan Mal gave a telegram to the plaintiff to get the sale deed executed. In reply to the telegram the plaintiff intimated Sawan Mal telegraphically that he had promised to deliver vacant possession and that he was ready to get the sale deed executed provided he (Sawan Mal) satisfied him that he would deliver vacant possession of the land agreed to be sold. Sawan Mal did not reply to this telegram but he was present in the office of Sub Registrar, Hisar on June 30, 1968 to execute the sate deed. The vendees did not turn up and therefore, the sale deed could not be executed. The plaintiff further claimed that the amount in question was a charge on the property in question by virtue of S. 55 (6) (b) of the Transfer of Property Act and that he could recover this amount by sale of the property regarding which the agreement to sell was executed in his favour by Sawan Mal deceased.

(3.) DEFENDANTS Nos. 1 and 3 to 10 contested the suit. The execution of the agreement to sell was not denied. It was, however, denied that defendant No. 2 transferred his rights under the agreement to sell in favour of the plaintiff. It was denied that the vendor agreed to deliver vacant possession of the land in dispute. It was further pleaded that the plaintiff and defendant No. 2 visited the land in dispute at the time of agreement and also verified from the entries in the revenue record that the same was in possession of tenants. Vendor Sawan Mal used to reside in Delhi in those days and the land in dispute was situated in village Talwandi Rana and it was known to the vendees that the tenants were in possession of the same. The vendor was not legally bound to deliver vacant possession of the land or get the deed of attornment executed from the tenants in favour of the plaintiff and defendant No. 2. The plaintiffs claim for recovery of earnest money with interest was refuted. It was disputed if the amount can be a charge on the property in question. Defendants Nos. 4 to 10 claimed themselves to be bona fide purchasers for consideration without any notice of the alleged agreement in favour of the plaintiff and defendant No. 2. Personal liability of defendant No. 2 for payment of the amount was also disputed.