Rakesh Sharma, J. - (1.) HEARD Shri P.C. Jain, learned Counsel for the appellants and Shri Sankata Rai learned Seruor Advocate assisted by Shri P.K. Rai representing Smt. Shanti Devi, the sole respondent. This second appeal has been preferred under section , C.P.C. against the judgment and order dated 10.4.2001 passed by IInd Additional District Judge, Agra in Civil Appeal No. 32 of 1993 arising out of Suit No. 190 of 1977 between (Shanti Devi and Ram Singh and others) represented as alleged legal heirs and representatives.
(2.) FROM the perusal of the record, it appears that Gangadhar, Ram Singh, Than Singh, all residents of village Jaupura, Tehsil and District Agra having Bhumidhari/Sirdari agricultural land contracted and agreed to sell the plots to Smt. Shanti Devi, sole respondent for a consideration of Rs. 35,000/ - on 28.5.1974 and an agreement to sale was prepared and executed on 28.5.1974. As an agreement to sell was prepared and executed on 28.5.1974, Smt. Shanti Devi paid Rs. 6000/ - as earnest money and part of consideration to the above said three persons on the date of agreement. This agreement is available on record of the second appeal. Specific terms and conditions were spelt out that balance of amount i.e., Rs. 29,000/ - would be paid on the date of registration of the sale deed. The sale deed was to be executed within three years as the said agriculturists were to obtain bhumidhari sanad by depositing the required sum with the Government. It was stipulated that in case the vendors failed to execute the sale deed it would be open for Smt. Shanti Devi to get it done through the Court. According to learned Counsel for the respondent, Smt. Shanti Devi was already prepared and willing to perform her part of agreement by complying the terms and get the sale deed executed. The above named vendors were delaying the execution of sale deed and in the meantime, Gangadhar had died leaving behind his legal heirs and representatives who are parties to this appeal. The vendors were requested to execute the sale deed by 25.5.1977, that is, the date when the vendors agreed to come to the Registrar's office to execute the sale deed. Smt. Shanti Devi remained present in the office, but the vendors (appellants herein) did not come, the notices and telegrams etc., were also sent to the vendors to execute the sale deed. In between the period when these efforts were being made by Smt. Shanti Devi, consolidation operations started in the village and new Khasra Nos. 231, 813, 232, 227, 213, 229 and 259 were allocated to the land in dispute. These new Khasra numbers were recorded in place of old khasra numbers in the revenue and consolidation records.
(3.) A civil suit was filed -on failure to execute the sale deed. Smt. Shanti Devi has filed a suit in the Court of Civil Judge, Agra seeking specific performance of the agreement dated 28.5.1974. The defendants were required to execute the sale deed of the plots detained in the plaint and till then the possession of the land was also sought. The Trial Court had dismissed the plaintiff -Shanti Devi's suit on 16.2.1993. Being aggrieved, the Civil Appeal No. 32 of 1993 was preferred by the plaintiff, Smt. Shanti Devi. This civil appeal was allowed by the Second Additional District Judge, Agra on 1.04.2001. The present second appeal has been filed by the three sons of late Ram Singh viz. Thakuria, Man Singh, and Tika, Than Singh S/o. Jwali, Smt. Kalawati, W/o. late Gangadhar and Girraj, S/o. late Gangadhar to challenge the judgment and decree referred by the Lower Appellate Court. This Court while admitting the appeal on 18.7.2001 had stayed the operation of the judgment and decree of 10.4.2001, the appeal was admitted on the ground Nos. A and B: (A) Whether the impugned judgment is vitiated for not considering any of the factors present on record as stated in ground No. (g) of this appeal, specially when the Court below was exercising equitable jurisdiction under section of the Specific Relief Act. (B) Whether the agreement in question dated 28.5.1974 has been rendered infructuous and un -enforceable when substantial portion of the land undisputedly has been allotted to a third person Sri Bedaria in the form of new Plots No. 227, 229 and 259.;