- (1.) THESE appeals, preferred under Sec tion 100 of the Code of Civil Procedure, 1908, are directed against the judgment and decree dated 21-01-2004, passed in Civil Appeal No. 167 of 2001 by the then learned Additional District Judge / Fast Track Court II, Dehradun, whereby the said appeal is allowed and Original Suit No, 747 of 1995 is decreed for spe cific performance of contract under agreement of sale.
(2.) I heard learned counsel for the parties and perused the record. Brief facts of the case are that plaintiff instituted the suit No. 747 of 1995 with the pleadings that defendant Ram Kumar executed an agreement dated 05-06-1995 to sell his land to the plaintiff Virender Singh for Rs. 42. 000/-, and got the same registered. Out of the sale consideration of Rs. 42,000/-, it is alleged in the plaint that Rs. 10,500/-was received by defendant Ram Kumar at the time of instituting the agreement, and Rs. 20. 500/- was paid prior to the execution of the agreement. The rest of the amount i. e. Rs. 11. 000/- was to be paid at the time of execution of sale deed. It was pleaded that the sale deed was to be executed by 15-08-1995. When the defendant Ram Kumar failed to execute sale deed in favour of the plaintiff Virender Singh, the latter sent notice dated 10-07- 1995 asking the de fendant Ram Kumar to be present in the office of the Sub Registrar on 10-07- 1995, at 10:30 A. M. to execute the sale deed, as agreed between them. On the said date defendant did not oblige the plaintiff. Instead, he sold the property to defendant Ganga Prasad @ Jai Prasad. Defendant No. 2 Sumer Chand was impleaded in the suit as per direction of the trial court. Defendants contested the suit and filed their written statements. De fendant Ram Kumar took the plea that infact agreement was executed with the condition that the plaintiff Virender Singh shall pay loan of the defendant to the Land Development Bank, which he failed to do. Defendant Ram Kumar denied having received sum of Rs. 20,500/- from the plaintiff. He further pleaded that the suit is barred by provi sions contained in Section 17,20,38 and 41 of the Specific Relief Act, 1963. De fendant No. 2 Sumer Chand filed sepa rate written statement, in which he took the plea that the land measuring. 02 acres in Khasra No. 1368 bears his share also, as such, defendant Ram Kumar had no power to transfer his share to the plaintiff. Defendant No. 3, Ganga Prasad @ Jai Prasad filed his separate written statement defending the sale deed executed in his favour by Somi Devi, power of attorney holder of defend ant Ram Kumar.
(3.) THE trial court framed as many as ten issues. After recording the evi dence and hearing the parties, the trial court found that the defendant Ram Kumar did execute agreement of sale on 05-06-1995 in favour of the plaintiff Virender Singh to sell his land for con sideration to the tune of Rs. 42. 000/ -. It further found that Rs. 10. 500/- were received by the defendant Ram Kumar at the time of executing the agreement and Rs. 20,500/- before executing it. As to the readiness and willingness on the part of the plaintiff to perform his part of contract it was found that he was ready and willing to perform his part of contract. On the point of limitation, the issue was decided in negative i. e. in fa vour of the plaintiff as the defendants did not press it. Similarly, issue on the point whether the suit is barred by vari ous provisions of the Specific Relief Act, that too was not pressed by the defend ant Ram Kumar and said issue was also decided in favour of the plaintiff. THE trial court also found that suit is not bad for non- joinder of the Land Devel opment Bank as no relief has been claimed against it. THE trial court fur ther found that the agreement of sale in question is not void or ineffective on the ground that the property in question was already mortgaged by the defendant Ram Kumar to the Bank, from which he had taken the loan. As to the objection of defendant Sumer Chand, it was found that said defendant had no share in plot No. 1368, in respect of which the agreement of sale was executed. Issue on the point of valuation and court fee was decided against the defendants. Lastly, it was found that the defendant Ganga Prasad @ Jai Prasad is not a bonafide purchaser of the property from the defendant Ram Kumar and transac tion was sham, as such, the sale deed in favour of the defendant Ganga Prasad @ Jai Prasad have no impact in the suit for specific performance of contract against the defendant Ram Kumar. However, the trial court did not decree the suit for spe cific performance of contract, but decreed only for refund of Rs. 31,000/- (considera tion passed from plaintiff to the defend ant Ram Kumar) with interest at the rate of 6% per annum with quarterly rests. THE reason for not decreeing the suit for spe cific performance of contract, but for re fund of the aforesaid amount, given by the trial court is that the property to be sold by the defendant Ram Kumar was al ready mortgaged with the Bank and the plaintiff was not ready and willing to pur chase the property subject to the encum brance. Against said judgment and decree dated 31-08-2001 passed by the trial court, civil appeal No. 167 of 2001 was preferred by the plaintiff. The lower ap pellate court, after hearing the parties, allowed the appeal and decreed the suit for specific performance of contract. Ag grieved by the same, defendant Ram Kumar and defendant Ganga Prasad @ Jai Prasad have filed these separate ap peals.;