- (1.) Challenge in this D.B. Civil Special Appeal filed under Section 18 of the Rajasthan High Court Ordinance, 1949 is to the correctness of the judgment dated 03.05.2000 rendered in S.B. Civil Regular First Appeal No. 73 of 1985 by the learned Single Judge, by which the appeal filed by respondent No.1 Dhudi w/o Roopa Jat (original defendant No.2) against the appellant (original plaintiff) came to be allowed and thereby judgment and decree dated 30.04.1985 passed by learned District Judge, Balotra camp Barmer (for short, 'trial Court') rendered in Civil Original Suit No.19 of 1982 has been dismissed, and resultantly, the suit filed by appellant-plaintiff Nand Ram against defendant No.1 & 2 seeking specific performance of contract pursuant to agreement dated 26.01.1981 has been dismissed.
(2.) Facts leading to filing of the present appeal are that the plaintiff Nand Ram filed a suit for specific performance and permanent injunction against defendants No.1 & 2 Khetu and Dhudi respectively in the Court of District Judge, Balotra on 28.08.1982 alleging that on 26.01.1981 the husband of defendant No.1 deceased Kheta executed agreement Ex.1 in favour of the plaintiff by which he agreed to sell the land of Khasra No.34 measuring 66 bighas 7 biswas and Khasras No.32 and 33 for Rs. 12,000 to the plaintiff for Rs.12000 and out of that Rs.10,000 were received by deceased Kheta as advance and it was agreed that rest amount of Rs.2,000 would be paid by the plaintiff to deceased Kheta within six months and thereafter registered sale deed would be executed but the possession of the land was given to the plaintiff on the date of execution of the agreement. It was further alleged that the plaintiff requested deceased Kheta two-three times for registry in pursuance of agreement Ex.1 but same was not got done by deceased Kheta and after seven months from the date of execution of agreement Ex.1, deceased Kheta died and after his death defendant No.1 became heir of deceased Kheta and the plaintiff also requested defendant No.1 for registry in his favour in pursuance of agreement Ex.1 but she also did not do so. It is further alleged that defendant No.2 is the sister-in-law of defendant No.1 and defendant No.1 executed a gift deed on 09.06.1982 and the land which was agreed to be sold by deceased Kheta to plaintiff was given by defendant No.1 to defendant No.2 through the said gift deed which was got registered and since they were threatening to dispossess the plaintiff from the land in question, therefore, he filed the suit for permanent injunction with the prayer to direct the defendants to get the sale deed registered in his favour in pursuance of agreement Ex.1.
(3.) The suit of the plaintiff was contested by defendant No.2 by filing written statement before the trial court on 15.07.1983 stating that no agreement was ever executed by deceased Kheta in favour of plaintiff and the said agreement is forged one and the land in question is still in possession of defendant No.2 as it was never given to the plaintiff and the case of the plaintiff that he is in possession of the land in question is totally false. It was further stated that plaintiff never asked either to defendant No.1 or defendant No.2 to get the sale deed registered in his favour and further it was stated that defendant No.1 who is the owner of the land in question has gifted the land on 09.06.1982 to defendant No.2 vide gift deed and since 09.06.1982 defendant No.2 has been in possession of the land in question and as such when the plaintiff is not in possession of the land, no question of dispossessing him arises. It was further stated that the stamp of agreement Ex.1 was never purchased by deceased Kheta but it was purchased by PW3 Harupa Ram and though the stamp was purchased on 08.01.1981, the agreement was executed on 26.01.1981 which has been forged by PW3 Harupa Ram with the conspiracy of PW2 Bhera Ram, PW4 Anda Ram, PW5 Raimal Ram, PW6 Sona and others, inasmuch as, deceased Kheta filed a complaint under Sec.107 Cr.P.C. against PW3 Harupa Ram, Tulcha and Dungra on 08.09.1981 and defendant No.1 also filed an application under Sec.97 Cr.P.C. about the search of her husband deceased Kheta against PW3 Harupa Ram and thereafter deceased Kheta was released from the custody of PW3 Harupa Ram etc. and apart from this many other litigations were going on between defendant No.1 and PW3 Harupa Ram and others. Therefore, it was prayed by defendant No.2 to dismiss the suit. It may be noted that defendant No.1 has not contested the suit.;