R.L.ANAND, J. - (1.) THIS is a litigation between the three real brothers - one on one side and the two on other side. Shri Mohinder Singh appellant filed a suit for possession for specific performance of contract of sale of the land measuring 36 kanals 19 marlas being 1/3rd share of the land as entered win the jamabandi for the year 1970-71, situated in the village Lohat, against his two brothers Harjit Singh and Karam Singh by alleging that the defendant had entered into an agreement of sale on his favour on 27.8.1973 and under the agreement the possession of the land was also given to him.
(2.) THE case set up by the plaintiff Shri Mohinder Singh against his two brothers was that Shri Puran Singh, father of the parties, was the owner of the land measuring 36 kanals 19 marlas situated in village Lohat fully detailed in the head note of the plaint as per jamabandi for the year 1970-71. On 27.8.1973 the defendants represented to the plaintiff that Shri Puran Singh had executed a will in favour of the defendants on 7.7.1968. The defendants entered into an agreement with the plaintiff to sell the land measuring 12 kanals 6 marlas i.e. 1/3rd share of the total land measuring 36 kanals 19 marks as entered in the Jamabandi for the year 1970-71 for a sum of Rs. 5000/-. It was also agreed between the parties that the defendants will execute the sale deed in respect of the land in dispute within one month from the date of the sanctioning of the mutation of inheritance to the estate of Puran Singh in accordance with the will dated 7.7.1968. It was also agreed that the registration expenses shall be borne by the plaintiff. Also it was agreed between the plaintiff and the defendants that if the defendants did not execute the sale in favour of the Plaintiff, they shall be liable to pay Rs. 5000/- which was received by them as earnest money and in addition to that they shall pay Rs. 5000/- as damages. The total sale consideration of the land was also Rs. 5000/-. According to the plaintiff, he is peaceful possession of the suit land since 27.8.1973 under the agreement. The mutation of inheritance in respect of the estate of Puran Singh has been sanctioned by the Assistant Collector Ist Grade, Garhshankar on 1.6.1976 in accordance with the will dated 7.7.1968. The defendants are shrewed persons and have backed out from the agreement. The time stipulated in the agreement has since expired. Earlier the plaintiff filed a suit for injunction, which was dismissed as withdrawn. Now, he has filed the suit for possession by way of specific performance. It was also pleaded by the plaintiff that he served a legal notice upon the respondents 8.6.1976. He even gave a telegram on 29.6.1976 to the defendants for execution of the sale deed, but the defendants did not reach in the office of the Sub Registrar. The plaintiff was always ready and willing to perform his part of the agreement. Defendants have refused to execute the sale deed. Hence the suit. The suit was contested by the defendants and they took the stand that it was within the knowledge of the plaintiff that their father Puran Singh had made will in their favour and there was no occasion for the defendants to make any representation to the plaintiff of the factum of the Will. They never entered into an agreement with the plaintiff for Rs. 5000/- nor they executed any agreement and, in fact, nothing was paid to them. The plaintiff being the eldest brother had a dominating effect upon the defendants. Defendant No. 2 was a man of an unsound mind and incapable of entering into any contract with the plaintiff. Defendant No. 1 is a simpleton person. About three years before the filing of the suit, the plaintiff represented to the defendants that he would arrange Tacavi loan for the installation of a tube-well in their land and for that purpose the defendants were brought to Balachaur and their signatures were obtained on some papers. The defendants could never imagine that the plaintiff would play a fraud upon them. The market value of the suit land was more than Rs. 20,000/- per acre and the defendants could never agree to sell the same for a paltry sum of Rs. 5,000/-. The agreement set up by the plaintiff was false and fictitious. The defendants were under the influence of the plaintiff. The plaintiff must have used this fiduciary relationship to serve his own ends. The plaintiff forcibly occupied some part of the land. There was a conspiracy between the plaintiff and the scribe and the witnesses. The mutation of the estate of Puran Singh was rightly attested in favour of defendants Nos. 1 and 2.
(3.) FROM the pleadings of the parties, the learned trial Court framed the following issues : 1. Whether the defendants did not execute agreement dated 27.8.1973 in plaintiffs favour ? OPD. Onus objected to. 2. Whether the said agreement is without consideration ? 3. Whether the said agreement is unconscionable and void is the result of fraud, mis-representation and undue influence ? 4. Whether the plaintiff was ready and willing to perform his part of the agreement ? 5. Whether the suit is not correctly valued for purpose of court fee and jurisdiction ? 6. Whether defendant No. 2 is of unsound mind ? If so, to what effect ? 7. To what amount in the alternative plaintiff is entitled ? OPD 8. Relief. The parties led oral as well as documentary evidence in support of their case. While deciding issue Nos. 1, 2 and 3 collectively, all the issues were decided against the plaintiff and in favour of the defendants. Issue No. 4 as decided in favour of the plaintiff. Issue No. 5 was decided against the plaintiff. Issue No. 6 was decided against the defendants observing that defendant No. 2 was a simpleton person, but he was not a man of unsound mind. Finally, the suit of the plaintiff Shri Mohinder Singh was dismissed by the trial Court vide judgment and decree dated 29th March, 1978. Aggrieved by the judgment and decree, the plaintiff Shri Mohinder Singh has filed an appeal before the Court of Additional District Judge, Hoshiarpur, who reversed the findings of the trial Court on the point with regard to the execution of the agreement to sell (Exhibit P-1). The first appellate Court held that the respondents executed the sale deed in favour of the appellant for a consideration of Rs. 5000/- and also delivered possession of the land in dispute to him on 27.8.1973 at the time of the execution of the agreement to sell. However, the first appellate Court found that while the plaintiff is not entitled to a decree for possession by way of specific performance because it would be most inequitable to interfere with the specific performance and to this extent an alternative relief was given to the plaintiff and a money decree in the sum of Rs. 5000/- was passed against the defendants leaving the parties to bear their own costs of the suit. Still not satisfied with the judgment and decree of the first appellate Court, Shri Mohinder Singh plaintiff has come in the present appeal.;