- (1.) THIS appeal by the plaintiff is from a judgment and decree dated 23rd May, 1978 of the, 2nd Addl. Civil Judge, Meerut dismissing the suit for specific performance and recovery of possession.
(2.) THE plaintiff-appellant brought suit with the allegations that on 25th Sept. , 1965, Smt. Omkari (defendant No. 1) had agreed to sell her land to him for a consideration of Rs. 20,000/ -. She had 1/3rd share in joint bhumidhari and sirdari khatas. She had agreed to have her share partitioned and to acquire bhumidhari rights in respect of the sirdari land. THE sale deed in his favour was to be executed thereafter. He paid a sum of Rs. 3,000/- to the defendant No. 1 as advance and she executed a registered agreement to sell in his favour. He gave notice dated 13th May, 1968, to the defendant No. 1 to have her share partitioned and to execute a sale deed thereof in his favour on receipt of the balance consideration of Rs. 17,000/- but she did not pay any heed. Defendant No. 1 and her co-sharers were in collusion, and therefore he thought that it would not be expedient to wait till the partition of the share of the defendant No. 1. He gave another notice dated 9/10 Sept. , 1968 calling upon the defendant No. 1 to execute the sale deed of the land of her share in his favour after depositing ten times land revenue in respect of the sirdari land, and to come to the registration office on 20th Sept. , 1968 for the purpose. THE defendant No. 1 did not comply. After this notice, he several times approached the defendant No. 1 to execute the sale deed but she refused to do so. He was all along willing and ready to perform his part of the contract and to pay the balance consideration of Rs. 17,000/- and other incidental expenses. The plaintiff got the plaint amended in the year 1969 and impleaded Rajsingh as a defendant. He alleged that Rajsingh (present defendant-respondent No. 2) in collusion with the defendant No. 1, filed a suit in the Court of the Civil Judge, Saharanpur, for recovery of money on the basis of a fictitious claim and obtained an ex parte decree. He got the decree transferred to Meerut and put the share of bhumidhari plots of defendant No. 1 to auction sale in execution of that decree. He purchased the land himself and the auction sale was confirmed on 7-3-1969 by the executing Court. The plaintiff added that he was not arrayed as a party in that suit by Raj Singh. The auction sale was a collusive act of Raj Singh and the defendant No. 1. Raj Singh had full notice of the agreement to sell between him and the defendant No. 1. The auction sale was also hit by the doctrine of lis pendens and it was not binding on him. The plaintiff prayed that a decree for specific performance be passed and the defendant No. 1 be directed to execute a sale deed of the property detailed at the foot of the plaint in his favour, on receipt of the sum of Rs. 17,000/ -. The defendant No. 2 Raj Singh should also be directed to join in the execution of the sale deed. He also prayed for delivery of possession over the land in suit. At the foot of the plaint, the property in suit was described as 1/3rd share in the bhumidhari and sirdari plots. Four bhumidhari plots measuring 27 bighas 15 biswas 15 biswansis and one sirdari plot measuring 17 bighas 3 biswas 10 biswansis were mentioned. The total area of the share of this defendant No. 1 was shown as 14 bighas 19 biswas and 11 ? biswansis.
(3.) ORIGINALLY the plaintiff had arrayed the co-tenants of defendant No. 1 also as defendants Nos. 2 to 6 and had made some allegations with regard to the partition suit which was pending at the time of the institution of his suit. He later on deleted the names of those defendants from the aray of the defendants. Hence, it is not necessary to set out averments made with regard to the partition suit. Smt. Omkari filed a written statement on 20th April, 1969. She averred that she was trying her best to get her share partitioned and she had no objection to the specific performance of the agreement to sell dated 25th Sept. , 1969. She added that the delay in decision of the partition suit was on account of the fabian tactics of her co-tenants. She also pleaded that the suit of the plaintiff was premature. Under the terms of the agreement, the sale deed was to be executed after the partition of the holding and the mutation proceedings were over.;