RAKESH KUMAR JAIN,J. - (1.) THIS appeal has been preferred by the plaintiff against the judgment and decree dated 21.12.1993 passed by Senior Sub Judge, Kapurthala where by his suit for specific performance was dismissed and the plaintiff was held entitled only to the alternative relief of recovery of Rs. 12,000/- against defendant No. 1 only along with interest @ 12% p.a. from the date of agreement to sell and future interest @ 6% p.a. on the principal amount from the date of the suit till realisation. However, the suit against defendants Nos. 2 and 3 was dismissed.
(2.) THE facts of the case are that land measuring 71 Kanals 13 Marlas was allotted to defendant No. 1 by the Government of Punjab in village Jhal Thikriwala, Tehsil and District Kapurthala. Defendant No. 1 entered into an agreement of sale of the said land with the plaintiff for a consideration of Rs. 12,000/- on 18.1.1979 and had received total amount of Rs. 12,000/- at the time of execution of agreement to sell. It was provided in the agreement that the sale deed shall be executed by defendant No. 1 within a period of one month from the date he would get issued/granted Sanad of the land. It was mentioned in the plaint the possession of the land was with the plaintiff and when he was tried to be dispossessed by the defendants forcibly, a suit for permanent injunction was filed by him. After filing of the suit for permanent injunction, the defendants got intiated proceedings under Section 145 Cr.P.C. in which Sub Divisional Magistrate, Kapurthala vide his order dated 24.4.1989 attached the suit land and appointed Naib Tehsildar, Kapurthala as Receiver. However, the proceedings under Section 145. Cr.P.C. were ordered to be consigned to record by Sub-Divisional Magistrate, Kapurthala vide his order dated 25.7.1989 subject to the decision of the Civil Court and the factum of possession was left undecided. It was pleaded that by virtue of order dated 24.4.1989 passed by Sub Divisional Magistrate, Kapurthala, the receiver tantamounts the possession of the land in dispute from the plaintiff, therefore, the possession of the receiver took the possession of the plaintiff. It was also claimed that at the time of filing of suit for permanent injunction against the defendants, the Sanad of the land was not issued/granted to defendant No. 1, therefore the plaintiff could file suit for permanent injunction but the plaintiff has come to know that Sanad/Sale certificate of the land in question has been issued to defendant No. 1 on 17.7.1989. It was further added that plaintiff has come to know that by virtue of Civil Suit No. 538 of 17.7.1990, Durga Dass defendant No. 3 has obtained a decree for possession of the land in question by way of specific performance of alleged agreement dated 6.6.1978 from the court of Sub Judge Ist Class, Kapurthala on 30.8.1990. The plaintiff has challenged the agreement dated 6.6.1978 as fabricated in judgment and decree in the suit No. 538 of 1990 as collusive. The plaintiff, thus, prayed for a decree for specific performance of agreement to sell dated 18.1.1979 in respect of land measuring 71 Kanals 13 Marlas in lieu of Rs. 12,000/- already paid at the time of agreement and in the alternative, prayed for recovery of Rs. 12,000/- for breach of the agreement. The suit was contested by defendants Nos. 1, 2 and 3 by filing their written statements separately. In the preliminary objections, defendants Nos. 1 and 2 had pleaded that the suit is barred under Section 11 CPC as the plaintiff had earlier filed a Suit No. 417 of 14.11.1987 which was dismissed as withdrawn on 20.2.1990 although that suit was also filed on the basis of agreement to sell dated 18.1.1979. It was also mentioned that defendant No. 1 had no right to sell the disputed land for a period of 10 years from the date of sale certificate issued in his favour by Government on 17.7.1989. On merits, it was pleaded that land in dispute was allotted to defendant No. 1 on reserved price being Scheduled Caste. Therefore, he had no right to part with the possession of the same in favour of third person and was no having ownership rights at the time of allotment of the land in question. Defendant No. 1 also denied agreement to sell and termed it as an act of fraud and misrepresentation. So far as the possession is concerned that too was denied in favour of the plaintiff. Defendant No. 3 had taken up the stand that the plaintiff can not be granted decree for specific performance as the sale deed had already been executed in his favour and the possession has been taken through the Court in execution in due course of law. The plaintiff denied the averments made in the written statement by way of replication. On the pleadings of the parties, following issues were framed by the trial Court : (i) Whether Gurcharan Singh defendant No. 1 entered into an agreement to sell the suit land in favour of the plaintiff on 18.1.1979 for a consideration of Rs. 12,000/- paid as advance ? OPP. (ii) If issue No. 1 is proved, whether the plaintiff has been ready and willing to act upon his part of the contract ? OPP. (iii) Whether the suit is within time ? OPP. (iv) Whether the suit is bad for misjoinder of parties ? OPD. (v) Whether the suit is barred by principal of res judicata ? OPD. (vi) Whether defendant No. 1 could not alienate the disputed property for a period of 10 years ? If so its effects ? OPD. (vii) Relief. In support of his case, plaintiff examined himself as PW-1, Satpal deed writer as PW-2. On the other hand, defendants examined Gurcharan Singh as DW-1 and Durga Dass defendants No. 3 as DW-2. On appreciation of evidence, the trial Court found issue No. 1 in favour of the plaintiff and held that defendant No. 1 had executed an agreement Ex.P1 dated 18.1.1979 in favour of the plaintiff and had received Rs. 12,000/- as earnest money. Issue No. 2 was also decided in favour of the plaintiff holding that he was and is still ready and willing to perform his part of contract. Issue No. 3 was further decided in favour of plaintiff holding that the suit is within time. However, issue No. 4 was decided against the plaintiff and in favour of the defendants holding that defendant No. 2 has been an unnecessary party, therefore, the suit is bad for mis-joinder of parties. Issue No. 5 was decided against the defendants and in favour of the plaintiff holding that the suit is not barred by the principals of res judicata. So far as issue No. 6 is concerned, that was decided against the plaintiff and in favour of the defendants wherein it was held that the suit land can not be alienated in favour of the plaintiff and he is only entitled to the alternative relief. On the basis of the findings on all the issues, the trial court vide its judgment and decree dated 21.12.1993, decreed the suit of the plaintiff with costs for the recovery of Rs. 12,000/- along with interest @ 12% p.a. from the date of agreement to sell and with future interest on the principal amount till realization. However, suit against defendants No. 2 and 3 was dismissed. Aggrieved against the judgment and decree of the trial court, two appeals were filed, namely C.A. No. 6 of 1994 titled Ajit Singh v. Gurcharan Singh and others and C.A. No. 18 of 1994 titled Gurcharan Singh v. Ajit Singh and other in which Ajit Singh plaintiff had prayed for a decree for specific performance of the agreement whereas Gurcharan Singh defendant defendant No. 1 prayed that the suit has been illegally decreed even for the recovery of Rs. 12,000/-. The first Appellate court dismissed both the appeals holding that findings recorded by the trial Court on all the issues are in accordance with law, therefore, the alternative prayer has been legally granted.
(3.) PLAINTIFF is in second appeal before this court but no appeal has been filed by defendant No. 1 against the judgment and decree of the first Appellate Court.;