- (1.) In view of reasons given in this application, it is allowed subject to all just exceptions and one day delay in filing the appeal stands condoned.
(2.) Appellant-plaintiff filed a suit for possession, by way of specific performance of an agreement to sell dated 18.1.1991. It was his case that Kishori Lal- respondent No.1 was owner of the property, in dispute, and when after execution of agreement, receipt of earnest money, he failed to execute the sale deed in favour of the appellant, he was compelled to file this suit. In the alternative, he also prayed that a decree for recovery of Rs.4,30,000/- be passed in his favour. Suit to the extent of specific performance of that agreement was dismissed. However, alternative relief claimed was granted to the appellant and he was held entitled to claim an amount of Rs.4,30,000/- alongwith interest @ 9% P.A. He went in appeal, claiming specific performance of agreement, referred to above. Cross-objections were also filed by the respondents, with a prayer to dismiss his suit. Appeal was dismissed. Cross-objections filed by the respondents were allowed, to the extent that decree for recovery of Rs.4,30,000/- passed in favour of the appellant, shall be valid against respondent No.1- Kishori Lal only.
(3.) It is apparent from the records that both the Courts below have found it as a matter of fact that when agreement to sell was executed in favour of the appellant, the said Kishori Lal was not owner of the property, in dispute. To say so, reliance has been placed on judgment and decree dated 29.1.1988 suffered by said Kishori Lal in favour of respondents No.4 and 5. It is also proved on record that said Kishori Lal had laid challenge to the judgment and decree, referred to above, however, subsequently, he has withdrawn his suit. During trial of the present suit, Kishori Lal never appeared to say that the above said judgment and decree was a result of fraud played upon him. Before this Court, an attempt has been made to assail the judgment and decree passed in the year 1988. This Court feels that once suit filed by Kishori Lal, to challenge the judgment and decree, referred to above, was got dismissed as withdrawn, it is not open to the appellant, to lay challenge to the said judgment and decree again. No case is made out for interference in pure findings of fact as counsel has failed to raise any substantial question of law at the time of arguments. Dismissed.;