Gopal Singh, J. - (1.) THIS is appeal by Kishan Singh, Defendant No. 2 against Mohinder Singh, Plaintiff and Jawand Singh, Defendant No. 1, respectively, impleaded as Respondents Nos. 1 and 2 directed against the judgment of Shri Om Parkash Saini, Sub -Judge 1st Class, Ludhiana, dated July 31, 1962, decreeing the suit of the Plaintiff for possession by specific performance of agreement dated October 21, 1960, Exhibit P. 4 entered into between the Plaintiff and Defendant No. 1 for sale of vacant sites of land measuring 212 1/2 square yards and 86 square yards comprised in khasra No. 2817/1292, situate in Taraf Saidan within the municipal limits of Ludhiana.
(2.) FACTS leading to the appeal are as under: On May 25, 1959, one Ganesh Dass executed an agreement to sell in favour of Defendant No. 1 in respect of 86 square yards of land comprised in khasra No. 2817/1292 situate in Taraf Saidan in the town of Ludhiana. On October 21, 1960, Defendant No. 1 entered into an agreement under taking to sell 212 1/2 square yards of land forming part of that very khasra number. Defendant No. 1 also agreed by that agreement to sell 86 square yards of land agreed to have been sold by Ganesh Dass in favour of Defendant No. 1. Both these pieces of land were to be sold after their mutations had been sanctioned in favour of Defendant No. 1. According to the agreement, the Plaintiff paid Rs. 1,500 as advance towards the price in respect of the sale of 212 1/2 square yards and Rs. 500 as advance towards the price of 86 square yards. The remaining amount was to be paid by the Plaintiff to Defendant No. 1 at the time of registration of the sale deed. Mutation in respect of area of 212 square yards having been sanctioned, the Defendant executed on March 17, 1961, sale deed in favour of the Plaintiff for sale of that area. It is stated on behalf of the Plaintiff that he spent Rs. 600 for purchase of stamp paper, upon which sale deed was drawn up. The sale deed could not be registered on that date. On April 20, 1961, Defendant No. 1 entered into another agreement to sell the land in suit in favour of Defendant No. 2. A. notice was served on June 5, 1961, Exhibit -P. 6 on behalf of the Plaintiff upon Defendant No. 1 asking him to get the sale deed registered or else he would file a suit for possession by specific performance of the area of land as agreed to by Defendant No. 1 to be sold to the Plaintiff. The Plaintiff instituted suit on July 10, 1961, seeking decree for possession in respect of both the areas of land by specific performance of agreement dated October 21, 1960, or else for decree for damages to the extent of Rs. 4,600. During the pendency of the suit, Defendant No. 1 executed sale deed on August 18, 1961, in favour of Defendant No. 2 and got the deed registered on the next date in respect of 274 square yards of land comprised in khasra No. 2817/1292; the subject -matter of the suit. In course of statement dated July 26, 1962, Defendant No. 1 admitted that he sold the said area of land to Defendant No. 2 on August 18, 1961, by a registered sale deed. Upon this, Defendant No. 2 was directed to be impleaded as a party and consequently the plaint was amended. In the suit, the Plaintiff alleged that he was always ready and willing to perform his part of the contract and it was Defendant No. 1, who had committed breach of the agreement to sell even after having executed the sale deed, that Defendant No. 1, failed to appear on the date, when the deed was to be presented for registration and that the sale by Defendant No. 1 in favour of Defendant No. 2 having taken place during the pendency of the suit filed by the Plaintiff is hit by the principle of lis pendens and consequently is void.
(3.) DEFENDANT No. 1 in his written statement admitted the fact, of his having entered into an agreement with the Plaintiff for sale of the land at Rs. 18.50 per square yard but pleaded that the breach by avoidance or refusal to appear for registration of sale deed was committed by the Plaintiff and not by him and that the Plaintiff did not possess sufficient money for paying the balance of the sale price and getting the deed registered. He added that the stamp paper had been purchased by him and not by the Plaintiff, that the Plaintiff did not turn up at the time the deed was presented for registration and consequently the amount received by Defendant No. 1 as advance stood forfeited and the suit deserved to be dismissed.;