L.N.MITTAL, J. - (1.) C. M. No. 13915-C of 2011 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 47 days in re-filing the appeal is condoned. C. M. No. 13916-C of 2012 :
(2.) THIS is application for leave to appeal by legal representatives of Chander Kanta one of the legal representatives of original defendant no.1 Capt. Ganpat (since deceased). It is alleged that Chander Kanta died during pendency of first appeal, leaving behind two sons and also two sons of another pre-deceased son, as mentioned in paragraph 3 of the application, who were already party to the suit and first appeal, being the remaining legal representatives of original defendant no.1 Ganpat (since deceased). The application is accompanied by affidavit. Accordingly, the application is allowed, subject to all just exceptions. Main Appeal : THIS is second appeal by Ranbir Singh one of the legal representatives of defendant no.1 Ganpat (since deceased) and also by defendants no.2 to 5. Respondent no.1-plaintiff Balwan Singh Gahlawat filed suit against Ganpat defendant no.1 (since deceased and represented by appellant no.1 and proforma respondents no.2 to 4 as his legal representatives) and against appellants no.2 to 5 as defendants no.2 to 5. The plaintiff alleged that defendant no.1 being owner in possession of 172 kanals land, agreed to sell the same to the plaintiff @ Rs.33,000/- per acre and received Rs.75,000/- as earnest money and executed agreement to sell dated 12.04.1989. Sale deed was to be executed on or before 31.07.1989. Defendant no.1 assured the plaintiff that the land was free from encumbrances and litigation. The plaintiff further paid Rs.10,000/- to defendant no.1 on 25.05.1989 against receipt. The plaintiff later on learnt that the land was under mortgage with possession with defendants no.2 to 5 for consideration of Rs.25,000/-. Hari Singh, father of defendants no.2 to 5, also started claiming tenancy over the suit land and filed suit for injunction against Ganpat original defendant no.1. Plaintiff confronted defendant no.1 about mortgage and litigation. Defendant no.1 agreed to execute the sale deed on or before 30.10.1989 by making endorsement on 19.07.1989 on the back of agreement. Plaintiff further paid Rs.25,000/- to defendant no.1 on 01.08.1989 and another sum of Rs.25,000/- for deposit as mortgage money in the redemption suit. Redemption suit filed by defendant no.1 against defendants no.2 to 5 was decreed. However, execution petition filed by defendant no.1 was got dismissed as unsatisfied. Defendant no.1 agreed to extend the date of execution of sale deed up to 30.04.1990, but defendant no.1 again failed to perform his part of the contract as he could not get the possession of the mortgaged land from the mortgagees. However, 52 kanals land out of the agreed land, was not under mortgage. The parties agreed for execution of the sale deed of the said 52 kanals land and accordingly, sale deed was executed for the same on 09.06.1990 by defendant no.1 in favour of the plaintiff. Defendant no.1 also executed a second agreement to sell dated 24.05.1990, whereby he agreed to give notice to the plaintiff on finalisation of litigation, so that the plaintiff may get the sale deed executed within 50 days of the receipt of notice. However, defendant no.1, in collusion with defendants no.2 to 5, agreed to sell the suit land (remaining 120 kanals land, which is subject matter of the suit) to defendants no.2 to 5, who already had knowledge of agreements dated 12.04.1989 and 24.05.1990 executed by defendant no.1 in favour of the plaintiff. Since defendant no.1 failed to perform his part of the contract, plaintiff sought specific performance of the agreement to sell.
(3.) DEFENDANT no.1, while admitting the agreement dated 12.04.1989 executed by him for 172 kanals land including the suit land measuring 120 kanals and also while admitting execution of sale deed dated 09.06.1990 for 52 kanals land in favour of the plaintiff, broadly denied the other plaint averments. It was pleaded that Mr. S. S. Budhwar, Advocate, Rohtak was counsel for defendant no.1 in all cases. Mr. Budhwar obtained signatures of plaintiff on blank papers and forged the alleged receipt and subsequent agreement dated 24.05.1990. DEFENDANT no.1 denied having executed the said agreement. DEFENDANTs no.2 to 5 pleaded that their father was in possession of the suit land as tenant. DEFENDANTs no.2 to 5 were mortgagees thereof. DEFENDANT no.1 agreed to sell the suit land to defendants no.2 to 5. Plaint averments were controverted. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Rohtak, vide judgment and decree dated 01.04.2006, instead of decreeing the suit for specific performance of the agreement, decreed the suit for recovery of Rs.1,82,000/- with interest @ 12% per annum w.e.f. 06.06.1990 till recovery. Against judgment and decree of the trial court, there were two first appeals one preferred by the plaintiff and the other preferred by appellants herein. Learned Additional District Judge, Rohtak, vide common judgment and decrees dated 04.06.2011, dismissed the appeal preferred by appellants herein and allowed the appeal preferred by the plaintiff and decreed the plaintiff's suit for specific performance of the agreement.;