Pritam Singh Pattar, J. - (1.) THIS is a regular second appeal filed by Hari Singh and Om Parkash Defendants against the judgment dated July 10, 1970, of the Additional District Judge, Gurdaspur, dismissing their appeal against the judgment and decree dated August 30, 1969, of Subordinate Judge I Ind Class, Gurdaspur, whereby he granted decree for specific performance of the agreement of sale of the land in suit in favour of the Plaintiffs against them.
(2.) THE facts of this case are that Hari Singh Defendant agreed to sell the land in suit measuring 15 Kanals 8 Marias fully described in the plaint and situated in the area of village Talabpur, District Gurdaspur, for Rs. 4,000/ - to Mela Ram and Charan Dass on the basis of an agreement to sell, Exhibit P. 1, dated March 4, 1968. One of the conditions of the agreement was that Hari Singh would get the land mutated in his name and then he would sell the same to the Plaintiffs within one week. He received Rs. 1,500/ - as advance at the time of the execution of the agreement Exhibit P. 1. The Plaintiffs gave notice Exhibit P. 3 on June 28, 1968, to Hari Singh stating that they waived this condition in the agreement regarding the mutation and that he (Hari Singh) should execute the sale -deed in their favour immediately. They also made an application to the Panchayat that Hari Singh had agreed to sell the land to them and no one else should purchase the same. The Panchayat proclaimed this fact by beat of drum in the village. Hari Singh Defendant in his reply Exhibit P. 4 dated July 21, 1968, to the notice sent to him by the Plaintiffs, stated that he did not agree to sell the land to them. Hari Singh sold the land for Rs. 8,000/ - to Om Parkash Defendant on August 1, 1968 The Plaintiffs then filed suit for specific performance of the agreement to sell the land in their favour against Hari Singh and Om Parkash. In the alternative it was pleaded that Hari Singh may be ordered to pay Rs. 3,000/ - as damages to them. On the pleadings of the parties the following issues were framed by the trial Court: - (1) Whether Defendant No. 1 executed the agreement of sale dated March 4, 1968, in favour of the Plaintiffs, and if so, on what terms and its effect ? (2) Whether Defendant No. 2 had notice of the agreement of sale dated March 4, 1968. and if so, its effect ? (3) Whether the Plaintiffs are entitled to Rs. 3,000/ - from Defendant No 1 on account of the payment of earnest money and damages and if so, to what amount ? (4) Relief. The trial Court decided issues Nos. 1 and 2 in favour of the Plaintiffs. It was held on issue No. 3 that in the alternative, the Plaintiffs were entitled to Rs. 3000/ - from the Defendant on account of earnest money and damages. The Subordinate Judge passed decree for specific performance of the agreement to sell the land in suit in favour of the Plaintiffs against the Defendants with costs. Feeling aggrieved, the Defendants filed an appeal against this decree in the Court of the District Judge, which was dismissed by the Additional District Judge on July 10, 1970. Thereafter, the Defendants filed this regular second appeal. This appeal came up for hearing before me on March 10, 1975. The Learned Counsel for the Appellants contended that no finding on issues Nos. 2 and 3 was given by the Additional District Judge and, therefore, the decision of the lower appellate Court should be set aside and the case should be remanded for fresh decision on those issues. No finding was given on issue No. 2 and it was simply stated that on the basis of the agreement to sell a right in the land was created in favour of the Plaintiffs before the land was sold to Om Parkash Defendant No. 2 and it was immaterial whether Om Parkash had notice of the agreement Exhibit P. 1 executed in favour of the Plaintiffs or not. He also did not give any finding on issue No. 3. Since the lower appellate Court had not given any decision on issues Nos. 2 and 3, therefore, the remand of the case under Order 41 Rule 25, Code of Civil Procedure Code, was considered necessary. Further, the Appellants had made an application under Order 41, Rule 27, and Order 26, Rule 9, Code of Civil Procedure Code, for production of additional evidence and for appointment of a Local Commissioner in the lower appellate Court on March 20, 1970. This application was contented by the Respondents. However, this application was not decided either by a separate order or at the time of decision of the appeal. The case was, therefore, remanded to the lower Appellate Court under Order 41, Rule 25, Code of Civil Procedure Code, with the direction that it should decide issues No. 2 and 3 after discussing the oral and documentary evidence of the parties produced in this case and should send its report alongwith the evidence and its findings thereon to this Court. The lower Appellate Court was also directed to decide the application made by the Appellants under Order 41, Rule 27, and Order 26, Rule 9, Code of Civil Procedure Code. A direction was also given that if the application of the Appellants under Order 41 Rule 27, Code of Civil Procedure Code, was allowed, then the parties should be permitted to produce their evidence on all the issues and the Court should redecide all the three issues and submit its report along with the evidence recorded.
(3.) AFTER this remand order, the Additional District Judge, Gurdaspur, heard the arguments of the counsel for the parties regarding the application made by the Appellants under Order 41 Rule 27 and Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure, and he dismissed the same by his order dated 21st April 1975. Thereafter he heard the arguments of the counsel for the parties on issues Nos. 2 and 3 on 30th April 1975 and decided these two issues on that date. After discussing the oral and documentary evidence produced by the parties he held that Om Parkash Defendant -Appellant had notice of the agreement to sell dated March 4, 1968 executed by Hari Singh in favour of the Plaintiffs and he was not a purchaser in good faith for consideration without notice and he decided issue No. 2 against the Defendants. On issue No. 3 he held that the Plaintiffs were entitled to a decree for specific performance of the agreement to sell. The Additional District Judge, Gurdaspur, sent its orders dated 21st April 1975 and 30th April 1975 to this Court. The Appellants filed objections against these orders. It was alleged that the decision of the lower Appellate Court in rejecting their application under Order 41 Rule 27, Code of Civil Procedure Code, is wrong and incorrect and it may be set aside and that their application may be accepted. The decision on issues Nos. 2 and 3 of the Additional District Judge was also alleged to be wrong and incorrect and it was prayed that the same may be set aside and the suit of the Plaintiffs may be dismissed.;