M.M.KUMAR, J. - (1.) THIS is defendants' appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of fact recorded by both the Courts below holding that the agreement of sale set up by the defendant-appellants dated 8.7.1977 (Ex. D2) has not been proved on record and the agreement to sell Ex. P2, dated 17.7.1977 between the plaintiff-respondent No. 1 and defendant-respondent Nos. 2 to 7 has been proved. Accordingly, the suit of the plaintiff-respondent No. 1 has been decreed in his favour and against the defendant-appellants, who have also claimed to have entered into an agreement to sell with defendant-respondents 2 to 7. A decree for possession has been passed in favour of the plaintiff- respondent No. 1 and against the defendant-appellants as well as defendant- respondent Nos. 2 to 7.
(2.) THE case of the plaintiff-respondent No. 1 is that the owner of the house in question, namely, defendant-respondent Nos. 2 to 7 had entered into an agreement to sell with him for a total sale consideration of Rs. 25,000/- out of which Rs. 5,000/- had already been paid by him to the aforementioned defendant-respondents. An agreement was executed on 17.7.1977 (Ex. P-2) in favour of the plaintiff-respondent No. 1, which was recorded by Shri Ram Rattan (now represented by defendant-respondent Nos. 4 to 7) with his own hands in the presence of Kali Ram and Om Parkash, defendant-respondent Nos. 2 and 3. An amount of Rs. 5,000/- was paid in cash and the balance payment of Rs. 20,000/- was to be paid at the time of registration of the sale deed. They promised to get the sale deed executed at Meham on 30.7.1977 but they failed to reach Meham from Delhi. The plaintiff-respondent No. 1 came to know that they were trying to sell the house to someone else and in order to defeat any such attempt he sent an application dated 20.7.1977 to the Register, Delhi, that no sale deed be registered in favour of any third party. He has always been ready and willing to perform his part of the contract, which is proved by the fact that he waited for defendant-respondent Nos. 2 to 7 in the office of Sub Register, Meham on 2.8.1977 and 3.8.1977. He made applications to the Register, Meham on the aforementioned dates. But defendant-respondent Nos. 2 to 7 failed to turn up. He served a legal notice upon the aforementioned defendant-respondents to get the sale deed executed at Meham on 9.8.1977 but they failed to turn up. A copy of the notice dated 4.8.1977 was also sent to the defendant-appellant. Another attempt was made calling upon the defendant- respondent Nos. 2 to 7 to come to the office of Sub Register on 16.8.1977 but they fail to do so. A registered notice was served on 24.8.1977 upon them requesting them to execute the sale deed on 5.9.1977. A reply was sent by the aforementioned defendant-respondents on 2.9.1977. However, the defendant- respondent Nos. 2 to 7 had executed the sale deed at Delhi on 26.8.1977 in favour of the defendant-appellants despite the existence of agreement to sell between plaintiff-respondent No. 1 and the defendant-respondent Nos. 2 to 7. The defendant-appellants were requested by the plaintiff-respondent No. 1 not to change the nature of the suit property by making any structural changes. He sent a notice by telegram to them on 1.10.1977. The stand taken by defendant-respondent Nos. 2 to 7 in their written statement is that suit was not maintainable because the sale deed of the house in dispute had already been executed and registered in favour of defendant- appellants. They had pre-existing rights on account of agreement to sell dated 8.7.1977 (Ex. D-2). There was no negotiations with the plaintiff-respondent No. 1 by defendant-respondent Nos. 2 to 7 in June, 1977 or thereafter for selling the house in question to him. As a matter of fact, defendant- respondent Nos. 2 to 7 had agreed to sell the house to defendant-appellants for a sum of Rs. 19,500/- and that an agreement to sell was executed on 4.7.1977 (8.7.1977 ?) (Ex. D-2), which was known to the plaintiff-respondent No. 1, who is stated to be a Draftsman by profession. He is next door neighbour of defendant-appellants, who had got prepared a site plan of the house in dispute from him by disclosing it to him that the defendant- appellants were to purchase the house from defendant-respondent Nos. 2 to 7 and the agreement to sell in fact had been finalised. The plaintiff-respondent No. 1 came to know that the house in question was likely to be vacated by the Agricultural Department and he wanted to purchase the same for himself. He is alleged to have contacted defendant-respondent Nos. 2 to 7 at Delhi and allured them with high price. They told him that they were not to back out from the agreement to sell already entered with the defendant-appellants. However, the plaintiff-respondent No. 1 pursuaded them that if a formal agreement is entered into with him then he would himself sort out the problem of any other written agreement said to be entered with the defendant- appellants by paying them Rs. 5,000/-. It was agreed that in case defendant- appellants withdraw from the agreement to sell then the sale deed was to be executed in favour of the plaintiff-respondent No. 1 and if the defendant- appellants pressed execution and registration of the sale deed then the plaintiff-respondent No. 1 was to loose Rs. 5,000/- paid as earnest money. Therefore, the plaintiff-respondent No. 1 was estopped by his act and conduct from filing the suit. The assertion of the plaintiff-respondent No. 1 that he contacted defendant-respondent Nos. 2 to 7 at Delhi on 24.7.1977 or 26.7.1977 has been denied nor they had ever promised to execute the sale deed in his favour on 30.7.1977 at Meham. Defendant-respondent Nos. 2 to 7 were not to reach at Meham on 2.8.1977, 3.8.1977 or on 9.8.1977 for execution of the sale deed in favour of the plaintiff-respondent No. 1. The defendant-appellants were in possession of the house in dispute in their own right as owner because they had purchased the same by virtue of registered sale deed in their favour executed at Delhi on 26.8.1977. The agreement to sell dated 17.7.1977 executed between plaintiff-respondent No. 1 and defendant-respondent Nos. 2 to 7 was only a formal document and become void and ineffective.
(3.) IN their separate written statement, defendant-appellants took the stand that there was a valid agreement to sell between them and defendant-respondent Nos. 2 to 7 for the purchase of house in dispute for a sum of Rs. 19,500/-. An amount of Rs. 1,000/- was paid on 8.7.1977 when the agreement to sell was executed and the balance amount of Rs. 18,500/- was to be paid at the time of registration of sale deed. Accordingly, sale deed was executed on 4.8.1977 and it was registered in the office of the Registrar, Delhi on 26.8.1977. The delay in registration occurred because there was flood in Delhi and the Registrar was on flood duty. The balance sale consideration was paid before the Sub Registrar, Delhi. The agreement to sell, if any, entered into by defendant-respondent Nos. 2 to 7 in favour of the plaintiff-respondent No. 1 was null and void.;