Nisha Gupta, J. - (1.) THE instant civil regular first appeal as well as civil cross objection have been preferred against the common judgment & decree dated 01/11/2001 passed by the court of District Judge, Jaipur District Jaipur whereby, in lieu of specific performance, compensation has been awarded to the plaintiff -respondent. Since the appeal and cross -objection arise out of the same judgment & decree dated 01/11/2001 hence, both are being decided by this common judgment.
(2.) THE facts giving rise to this appeal and the cross objection in brief are that the plaintiff -respondent filed a suit on 16/08/1989 initially against defendant -respondent No. 2 for specific performance of agreement dated 30/01/1989. Lateron, the present appellants have been impleaded as party with the contention that respondent No. 2 was owner of the suit property bearing old Khasra No. 462/1225 (new Khasra No. 1323/1324) measuring 20 bigha situated in village Govindpura @ Ropara, Tehsil Sanganer. On 30/01/1989, he executed an agreement to sell in favour of the plaintiff -respondent. Total sale consideration was decided to be Rs. 80,000/ -. Plaintiff paid a sum of Rs. 10,000/ - in advance. Agreement to sell has been executed in presence of the witnesses. Possession of the property has also been handed over to the plaintiff -respondent and after getting possession of the property, plaintiff -respondent invested Rs. 10,000/ - for leveling of the suit property and patol has also been erected on the land. Plaintiff -respondent has also deposited lagaan for the samwat year 2042 -2046. Further contention of the plaintiff -respondent was that he was ready and willing to perform the part of his contract but defendant was not intending to sell the suit property hence, a notice dated 19/04/1989 has been served on the defendant and, thereafter, on 08/05/1989, news article has been published in the paper and lastly notice dated 30/06/1989 along with draft sale -deed was served on the defendant but defendant has not executed the sale -deed in favour of the plaintiff -respondent hence, suit for specific performance of agreement has been filed. Lateron, suit property has been acquired hence, amendment has been made to modify the relief and instead of specific performance, plaintiff prayed for compensation to be awarded to him. Defendants No. 1 to 5 jointly filed a written -statement stating therein that defendant -respondent/cross -objector -Sudarshan Kumar never executed sale -deed in favour of the plaintiff and property has been sold to the present appellants vide sale -deed dated 17/10/1989 in pursuance of agreement dated 14/12/1988. It has also been pleaded that signatures of the cross -objector have been obtained on blank papers with coercive method by Bhoma Ram, who is close relative of the plaintiff -respondent and they want to grab the property and for the alleged incident, FIR No. 130/1989 has been lodged and further it has been pleaded that property has been acquired by the Rajasthan Housing Board and now, specific performance of the contract is not possible. The trial court has framed the following twelve issues: - - "{1} Whether defendant No. 1 executed an agreement to sell in favour of the plaintiff regarding the land bearing Khasra numbers mentioned in para 1 of the plaint and plaintiff paid Rs. 10,000/ - in lieu thereof and got the ownership of the property? {2} Whether plaintiff is entitled for the relief of specific performance of contract as mentioned in para 2 of the plaint? {3} Whether Surendra Kumar Power of Attorney Holder of defendant No. 1 executed an agreement to sell in favour of defendants No. 2 to 5 on 14/12/1988 and handed over possession of the suit property to the purchasers after obtaining sale consideration of Rs. 20,000/ - from them, and what is its effect on the suit? {3A} Whether the said agreement to sell dated 14/12/1988 is not genuine and has been forged with the connivance of the defendants being executed subsequent to agreement to sell dated 30/01/1989, which was executed with the plaintiff? {3B} Whether defendant No. 1 illegally executed agreement to sell in favour of defendants No. 2 to 5 in connivance with them only to get money only with a view to cause harm to the plaintiff? {4} Whether the suit is not maintainable for want of deficit court fee according to the actual value of the suit property worth Rs. 1,60,000/ -? {5} Whether the khatedari rights of the suit property have been transferred in favour of defendants No. 2 to 5 w.e.f. 17/10/1989 in pursuance of agreement to sell dated 14/12/1988? {6} Whether defendant No. 1 drawn the Registered Power of Attorney in favour of Shri Surendra Kumar on 02/11/1988? {7} Whether the suit is not maintainable in view of the fact that agreement to sell is regarding the property, which is situated in Village Khori Ropara? {8} Whether the suit is liable to be dismissed on the ground of mis -joinder of parties? {9} Whether defendants are entitled to receive special costs provided under Section 35A of the Civil Procedure Code? {10} Whether the court is not having jurisdiction to hear the plaint in view of the fact that the alleged property for which agreement to sell was executed on 30/01/1989, is situated in Village Bhichuda, Tehsil Sagwada, District Dungarpur? {11} Whether alleged agreement to sell is not genuine and has been forged with an oblique motive at the instance of Bhoma Ram? {11A} Whether the plaintiff is essentially required to get declare the registered sale -deeds executed in favour of defendants No. 2 to 5 to be null and void? {11B} Whether in the changed scenario that the State Government has acquired the land during the pendency of the suit and now the specific performance of contract is not possible, plaintiff is entitled to get compensation? {12} Relief - To substantiate his case, plaintiff has examined PW1 to PW13 and also relied on the documents from Ex. 1 to Ex. 38 and per contra, the defendant -appellants have examined DW1 to DW9 and relied on the documents from Ex. A1 to Ex. A9.
(3.) AFTER hearing counsel for the parties, the court below has decreed the suit for compensation. Hence, this appeal.;