JASWANT SINGH,J. - (1.) APPLICATION allowed. Substantial questions of law are taken on record.
(2.) THE present Regular Second Appeal has been filed by defendant No. 2- appellant-Dalip Kaur (since deceased and represented by the Legal Representatives) against Zora Singh- plaintiff-respondent No. 1 (since deceased and represented by his Legal Representatives) for setting aside the impugned judgments and decrees dated 26.9.1981 and 10.8.1993 passed by the learned Sub-Judge 1st Class, Moga and learned Additional District Judge, Faridkot respectively. Facts giving rise to the matter in controversy are that defendant No. 1- respondent No. 2-Kikar Dass was owner in possession of land comprised in Khasra No. 300/14 (8-0), 17(8-0), 18(8-0), 23(8-0) and 24(8-0) measuring 40 kanals, situated in Village Charik, Tehsil Moga. He executed an agreement to sell dated 20.7.1977 in favour of plaintiff-respondent No. 1 - Zora Singh for a sale consideration of Rs. 45,500/- regarding the above said land and received earnest money of Rs. 7500/- in cash. Sale deed was to be executed on or before 10.6.1978.Sale expenses were to be borne by the plaintiff-Zora Singh. It was agreed between the parties that in case of default on the part of defendant No. 1-respondent No. 2-Kikar Dass, he would be liable to pay Rs. 15,000/- in addition to the right of the plaintiff respondent No. 1-Zora Singh to get the sale deed executed through court. It is further alleged by the plaintiff-respondent No. 1-Zora Singh that the suit land was earlier mortgaged with him alongwith his brothers for an amount of Rs. 27,000/- and they were in possession of the land in dispute. It is further alleged that the plaintiff- respondent No. 1-Zora Singh has been and is still willing and ready to perform his part of the agreement but defendant No. 1-respondent No. 2-Kikar Dass has refused to admit plaintiff's claim to execute the sale deed despite notice. It is further alleged that sale deed dated 14.6.1979 has-been executed by defendant No. 1 -respondent No. 2-Kikar Dass in favour of defendant No. 2- appellant Dalip Kaur for a sale consideration of Rs. 35,000/-. It is in these circumstances that plaintiff-respondent No. 1-Zora Singh filed a suit for proprietary possession by way of specific performance of contract dated 20.7.1977 of the land in dispute described in the head note of the plaint, as per jamabandi for the year 1967-68 of Village Charik, Tehsil Moga on payment of Rs. 45,500/- less Rs. 27,000/- mortgage amount already paid and Rs. 7500/- being the earnest money already paid i.e. balance amount of Rs. 11000/- or in the alternative suit for recovery of Rs. 15,000/- as damages or any other relief as the court may deem fit.
(3.) DEFENDANT No. 1-Kikar Dass filed written statement and denied the factum of execution of agreement and receipt of earnest money. It was further pleaded that in fact the plaintiff had expressed his inability to get the sale deed executed and pay the balance sale consideration and therefore, he was free to sell suit land to anybody else. He also raised the objection that the suit has not been properly valued and the same was liable to be dismissed as the plaintiff-respondent No. 1 has not sued for possession by way of specific performance and further plaintiff-respondent No. 1 backed out from the agreement and was estopped by his act and conduct.;