Sunil Ambwani - (1.) -Heard Shri Murlidhar, senior advocate assisted by Shri S. S. Chauhan for the appellants and Shri M. K. Gupta, appears for the respondent.
(2.) THIS second appeal arise out of Original Suit No. 418 of 1979, filed by Janki Devi and others-plaintiff appellants in the Court of Munsif Haveli, Aligarh for specific performance of an agreement of repurchase. The suit was dismissed by the trial court on 28.3.1984. The plaintiff appellants' Civil Appeal No. 97 of 1984, was dismissed by the Addl. Civil Judge, Aligarh by judgment dated 20.2.1985. Briefly stated the plaint allegations are that the husband of plaintiff No. 1 and plaintiff Nos. 2 to 7 were owners and in possession of 3/4th portion of the land in dispute. The plaintiffs' father executed a registered sale-deed dated 27.4.1974 in favour of the defendant on the same day and an agreement of repurchase was executed with the condition that within six years the defendant shall get a sale-deed executed in favour of plaintiffs' father on receiving Rs. 10,000 as sale consideration and in case they do not execute the sale deed, the defendant Daulat Ram shall deposit Rs. 10,000 in Court and will be entitled for execution of the sale deed in his favour. The defendant Daulat Ram approached the plaintiffs with Rs. 10,000 as consideration for repurchase but the plaintiffs' father did not execute the sale deed. It was alleged that defendant was always ready and willing to perform his part of contract and gave a registered notice dated 27.7.1979 to the plaintiffs' father for appearing before the Sub-Registrar, Aligarh on 16.8.1979 and to execute the deed of repurchase on receipt of Rs. 10,000. The notice was received but the plaintiffs' father did not appear. The plaintiff was present in the Court at the seat of his counsel from 10.00 a.m. to 4.00 p.m. And also made an application of his presence in the office of the Sub-Registrar. In the written statement the defendant denied the execution of agreement of repurchase and the notice dated 31.7.1989. The defendant stated that plaintiffs' father was in need of money and as such he executed an agreement dated 27.4.1974. He took Rs. 5,000 on the next date on 27.4.1974 and got the agreement of repurchase dated 27.4.1974 cancelled. The defendant had filed Suit No. 392 of 1976, Daulat Ram v. Shri Vinod Kumar Jain in the Court of Munsif, Koil for cancellation of agreement dated 27.4.1974. In the suit the application for interim injunction was rejected. The Misc. Appeal No. 75 of 1977, Daulat Ram v. Vinod Kumar was dismissed on 11.2.1978. Daulat Ram did not ask for any other relief except for possession over the suit land. The Suit No. 392 of 1976 is as such barred by Order II, Rule 2, C.P.C. Suit No. 392 of 1976 was dismissed on 12.3.1989 for want of prosecution. The plaintiff did not mention about any such agreement of repurchase as he has accepted Rs. 5,000 for cancelling the agreement on 28.7.1974.
(3.) THE appeal was admitted on the substantial questions of law as follows : 1. Whether the plaintiff would not be entitled to the relief of specific performance in view of the earlier Suit No. 392 of 1976 filed by him for cancellation of the sale deed executed by the plaintiff in favour of the defendant and simultaneous execution of the agreement in dispute in this appeal on the ground of fraud? 2. Whether the finding of the court below on the question of readiness and willingness of the plaintiff to perform the agreement is erroneous? 3.Whether the alleged relinquishment deed set up by the defendants requires registration?" The trial court while deciding issue Nos. 1 and 4 regarding the cancellation of agreement of repurchase and the validity of said agreement dated 28.7.1974 held that the agreement came to an end on receipt of Rs. 5,000 by which the rights of repurchase was given up. On issue No. 2 the trial court held that the defendant was not always ready and willing to execute the sale deed nor he had sufficient money. Daulat Ram did not mention about the agreement of repurchase in Suit No. 392 of 1976 and thus the suit is barred by Order II, Rule 2, C.P.C.;