- (1.) A suit for specific performance of an agreement was filed by the respondent-Ram Nayan. It was stated that Samujh, the predecessor in interest of the defendant had agreed to sell his share of the property in favour of the plaintiff on 25.1.1969 for a consideration of Rs.8,000/-. Through the agreement it was agreed that that defendant would execute the sale deed in favour of the plaintiff and get the entire consideration at the time when the sale would be registered before the Sub-Registrar. It was further agreed that sale would be possible only after Samujh got a bhumidhari certificate of his share. To get the property converted from Sirdari to Bhumidhari, an application was also moved before the Tehsildar by Samujh on 2.5.1969. Even though there was no right to transfer the land, Samujh executed a registered sale deed in favour of the plaintiff Ram Nayan and had also received Rs.8,000/-. Samujh, the brother of the defendant-Bachai, died on 2.10.1969 and, therefore, when the defendant did not execute the sale deed in favour of the plaintiff, the suit was filed. At the trial stage, the suit was decreed in favour of the plaintiff only to the extent that he could recover Rs.8,000/- from the defendant. However, the remaining claim was rejected. This gave rise to two First Appeals, one being First Appeal No.32 of 1980 by which the defendant prayed that the portion of the decree by which the Trial Court had directed for return of Rs.8,000/- be set-aside and another being First Appeal No.349 of 1980 by which the plaintiff desired the decreeing of the suit in toto.
(2.) First Appeal No.32 of 1980 filed by the defendant was dismissed while the First Appeal No.349 of 1980 filed by the plaintiff and others was allowed and the suit was decreed in toto. The defendant-Bachai filed a Second Appeal being Second Appeal No.3123 of 1981 but this Second Appeal was confined to the decree which was passed in First Appeal No.32 of 1980. The Second Appeal did not challenge the decree as was passed in First Appeal No.349 of 1980. Second Appeal No.3123 of 1981 was admitted on 16.12.1981 but was dismissed for want of prosecution on 15.9.2006. A Restoration Application for recalling the order dated 15.9.2006 was filed which was again dismissed on 8.11.2006 with the following order : "This second appeal was dismissed for want of prosecution on 24.3.2003. It was, however, restored on 22.8.2003 on the condition that the appeal shall be argued immediately after 15 days and was directed to be listed. The appeal was on the list for final hearing, thereafter. On 28.10.2005 it was directed to be listed in the next cause list. On 28.11.2005 a prayer was made by Shri Mahesh Narain Singh that the matter be passed over. It was again passed over on the request of appellant on 30.3.2006, 5.5.2006 and then on 19.5.2006 it was directed to be listed peremptorily on 18.7.2006. On 18.7.2006 once again a request was made to adjourn the case on which learned Judge hearing the matter released the appeal. It was then nominated to this Court. On 01.9.2006 on the request of learned counsel for the appellant it was directed to be listed in the next cause list. On 15.9.2006 no one appeared and the second appeal was dismissed. The order sheets now clearly establish that the appellants do not want the second appeal of 1981 to be heard by the Court. Today once again when the Court asked whether the learned counsel for the parties are ready to argue, the appellants have again requested for adjournment. Shri Y.S. Saxena pointed out that the appeal has been filed against the civil judge's decision on a Civil Appeal No.32 of 1980, which was infact dismissed in favour of the appellant. The appellant should have been aggrieved by the decision of civil judge on appeal No.349 of 1980, which was partly allowed. The memo of appeal shows that the appellants have not preferred the appeal against the judgment in first appeal No.349 of 1980. In this manner the appeal is also defective. The second restoration application is accordingly rejected for want of prosecution with costs."
(3.) There was one more Restoration Application filed for recalling the order dated 8.11.2006 which was again rejected on 1.10.2007. Another application for correcting the order dated 1.10.2007 along with a Modification Application was filed which was rejected on 23.10.2009. Thereafter, the instant Second Appeal being Second Appeal Defective No.381 of 2010 was filed. Initially notices were issued to the respondents. However, on 11.11.2011, this Court condoned the delay of almost 28 years and allowed the Delay Condonation Application. The Second Appeal was thereafter numbered as 68 of 2012. Subsequently, the appeal was admitted on 30.4.2012 and the following substantial question of law was formulated : "Whether lower appellate court was legally justified in treating the sale deed dated 02.05.1969 executed by late Sri Ram Samujh in favour of original plaintiffs respondents Ram Nayan and others as an agreement for sale on the ground that on the date of execution of the sale deed, Ram Samujh was only sirdar of the agricultural land in dispute and application for grant of bhoomidhari sanad filed on the same date was afterwards rejected on the ground of death of Ram Samujh who died on 02.09.1969? ";