R.N.MITTAL, J. - (1.) THIS first appeal is directed against the judgment and decree of the Subordinate Judge First Class, Pathankot, dated November 7, 1973, dismissing the suit of the plaintiff.
(2.) BRIEFLY the facts are that Capt. Kohar Singh, defendant No. 1, who was the owner of the land in dispute, agreed to sell it to the plaintiff as per agreement dated June 24, 1969, for a consideration of Rs. 45,000/ -. An amount of Rs. 18,000/ - was paid in cash as earnest money by the plaintiff to the said defendant at the time of execution of the agreement and the balance was to be paid by her at the time of registration of the sale deed. It was agreed that the sale deed would be executed by defendant No. 1, after the suit between defendant No. 1 and Ranjit Singh, defendant No. 2, regarding recovery of rent, pending in the Court of S.D.O (Civil) -cum -Assistant Collector First grade, Pathankot, was decided. It was further agreed that if the breach of the agreement was committed by plaintiff, she would forfeit her earnest money and in case it was committed by defendant No. 1, the plaintiff would be entitled to Rs. 18,000/ - by way of damages in addition to refund of Rs. 18,000/ - paid by her as earnest money. The plaintiff further pleaded that defendant No. 2 instituted a suit on July 4, 1969, against defendant No. 1 for declaration that he was the real owner of the property. The suit was dismissed by the lower Court and defendant No. 2 went up in appeal against that order. During the pendency of the appeal, defendant No. 1 colluded with defendant No. 2 and entered into a compromise with him by which he gave to defendant No. 2, 20 Kanals and 19 Marlas of land out of the land in dispute. The plaintiff has challenged the decree on the ground that it was entered into fraudulently and collusively with a view to deprive her of rights in the property. The plaintiff instituted a suit stating that as defendant No. 1 had failed to perform his part of the agreement, she was entitled to its specific performance. In the alternative she prayed that a decree for the recovery of Rs. 36000/ -, by way of refund of earnest money and damages be passed in her favour.
(3.) THE suit was contested by the defendants. Defendant No. 1 inter alia pleaded that he had been paid Rs. 3000/ - and not Rs. 18000/ - as earnest money and that he was always ready and willing to perform his part of the agreement, but the plaintiff failed to perform her part. He further pleaded that the plaintiff wrongly insisted upon the delivery of actual possession as a pre condition of sale. In the circumstances he prayed that the suit be dismissed. Defendant No. 2 pleaded that there was no privity of contract between him and the plaintiff and consequently the suit was liable to be dismissed on this ground alone. He further pleaded that he was the real owner of the property and defendant No. 1 was a Benamidar and, therefore, the compromise arrived at between the defendants was not collusive. He also prayed for the dismissal of the plaintiff's suit.;