- (1.) R. K. Mahajan, J. This is a first ap peal against the judgment and decree dated 2nd February, 1982 passed by Sri R. C. Awasthy, District Judge, Fatehpur by virtue of which the learned District Judge decreed the suit of the plaintiff-respondents for cor rection (rectification) in the plaint and specific performance of the same against the defendants. It was further directed that the agreement shall stand corrected as to be in respect of plot Nos. 179-A and 179-B and the defendant No. 1 was directed to execute a sale-deed in respect of the same plots in favour of the plaintiffs after accepting the balance consideration of Rs. 13, 000/- within a month. It was further ordered that the defendants 2 to 4 will also join in the sale-deed as it was held that during the pendency of the suit, the defendant No. 1 sold the property in suit to defendants 2 to 4 and by the defendant No. 4 in favour of defendants 2 and 3. The defendants were also ordered to pay the costs. If the defendants fail to comply with the decree within a month, the plaintiffs shall have a right to deposit the sale consideration in Court and get the sale-deed executed through the Court.
(2.) THE brief facts of the case are these: An agreement to sell was executed by the defendant No. 1 on 20-1-1975 with respect to agricultural land measuring 7 bighas 5 bighas and 18 bighas for a con sideration of Rs. 21, 000. Rs. 8, 000 was paid as earnest money by the plaintiffs. THE amount was paid with stipulation that in case within four years, the defendant No. 1 did not pay back the money, then he would not liable to execute the sale-deed for his land. On the relevant date, the money was not paid and a notice was given on 11 -8-1979 by way of telegram to defendant No. 1 to receive Rs. 13, 000/- and to execute the sale-deed within two days and also attend the office of the Sub-Registrar for the registra tion purpose. THE defendant No. 1 failed to appear before the Sub Registrar's office. It appears that during the pendency of the suit, the defendant No. 1 executed a sale-deed of the disputed land in favour of defendants 2 to 4 who are his relations and daughter-in-laws etc. The sale-deeds have not been produced in court and the trial Court has also not held them to be valid as they were effected during the pendency of the suit. The plea of the defendant-appel lants in the trial Court is that the plaintiffs father Shiv Bali Singh was the President of Regional Co-operative Secretary Joniha since 1975 and also the Block Pramukh. The defendant No. 1 was a member of the said society and used to take loan from there and in that connection his thumb-impressions used to be obtained by supervisors and other employees who were under the subordina tion of said Shiv Bali Singh. Thus it was asserted that the signatures of the defen dants were forged on blank papers which were later on converted into an agreement to sell. It may be mentioned that the trial Court has also repelled the plea of forgery on consideration of the oral evidence ad duced as well as the report of the finger expert. The trial Court has also held that the defendant obtained the specimen of the thump impressions for comparison but did not send the same for comparison.
(3.) THE only question which is to be examined in this appeal is whether the agreement would be rectified. Initially the agreement was made in respect of plot Nos. 189-A and 189-B but later on the mistake was detected and amendment was made in the plaint and consequently the agreement was rectified in respect of plot Nos. 179-A and 179-B instead of Plot Nos. 189-A and 189-B. I have heard the learned counsel for the parties at length and have also perused the entire record and the evidence on record. Sri Satya Prakash, learned counsel for the appellants, submitted that the agree ment dated 20-1-1975 was not got registered according to Section 17 of the Registration Act before the registration authority. It was further submitted that there was no meeting of mind of sale of Plot Nos. 179-A and 179-B or plot Nos. 189-A and 189-B. The argument proceeds that the plaintiffs never saw the revenue papers to ascertain the plot numbers. So his argument is that regarding plot Nos. 179-A and 179-B no rectification could be made. It has also been submitted that the Court has not considered the bona fide purchase of the defendants 2 and 3 and this important feature vitiate the finding of the trial Court. The learned counsel for defendant-respondents further submits that the defendant No. 1 was not the owner of Plot Nos. 189-A and 189-B but was owner of Plots 179-A and 179- B measuring 7 bigha 5 biswa 18 biswansis. He further submits that the name of the defendant No. 1 was never mutated on plot Nos. 189-A and 189-B but was only agreed of which the defendant No. 1 was the owner. He further submits that the defendant No. 1 failed to examine the thumb-impression on the agreement. His further submission is that the transferring of the land in dispute by the defendant No. 1 in favour of his relations and others was to frustrate the claim of the plaintiffs during the pendency of the suit. He further submits that the defendant No. 1 has not filed any appeal and as such the present appeal filed against the judgment and decree of the trial Court by Bodha and Smt. Piyaria is not maintainable.;