G.M.LODHA, J. - (1.) THIS is a defendants' appeal in a suit which has been decreed by the trial court.
(2.) THE plaintiffs have instituted this suit on 29 -3 -67 with the allegations that the defendant No. 1 along with his brother Gurdayal defendant No 5 had 28 bighas 16 biswas land situated at Chak 28GB, Tehsil Annopgarh comprised in square No. 22 to 22 and 26 and 27 measuring 12 bighas 3 biswas, 1 bigha 9 biswas, 1 bigha, 9 bighas 6 biswas and 4 bighas and 18 biswas respectively and 8 bighas 13 biswas situated at Chak 31GB comprised of square No. 60/29 and 61/30 measuring 5 bighas and 3 bighas and 3 bighas 13 biswas respectively. The defendant No. 1 was the Mukhtiyaraam of defendant No. 5 through a registered Mukhtyarnama dated 3 -7 -54 and under the said Mukhtyarnma the defendant No. 1 had rights of mortgage, sale and management of the land for cultivation. The defendant No. 1 had let out the aforesaid land to the plaintiff No. 1 in Smvt. 2012 and since then the plaintiffs are in possession of the said land. The defendant No. 1 represented to the plaintiffs that he intends to sell the land to which the plaintiffs agreed and on 23 -6 -64 the defendant No. 1 entered into an agreement with the plaintiffs to sell the said land for a sum of Rs, 23350/ - at different rates mentioned in the agreement and at the time of execution of the agreement a sum of Rs 6000/ - was paid by the plaintiff to defendant No. 1 by way of earnest money and it was agreed that the balance sale consideration of Rs 17,350/ - will be paid at the time of registration on 10 -11 -64. On breach of contract by defendant No. 1, Rs. 6,000/ - were agreed to be paid to the plaintiffs as damages. It was further pleaded that the dates of registration were extended on 1i -11 -64 to 25 -2 -65 on 25 -2 -65 to 30 -2 -65, on 30 -2 65 to 30 -6 -65, on 30 -6 65 to 15 -3 -66, on 15 -3 -66 to 15 -6 -66. The plaintiffs paid a sum of Rs. 4300/ - on 30 -3 -65, Rs. 2000/ - on 30 -6 -65 and Rs. 5200/ - on 15 -3 -66. It was alleged that endorsement of extension of dates of registration were made on the agreement and the dates were extended as the defendant No. 1 did not get the sale deed registered in favour of the plaintiff. The plaintiffs thus in all paid a sum of Rs. 17,500/ - and the balance amount of Rs. 5850/ - were to be paid which the plaintiffs were ready to pay but the defendant No. 1 due to dishonest intention did not execute the sale deed in favour of the plaintiffs and failed to get the sale deed in favour of the plaintiffs and failed to get the sale deed registered. The defendant No. 1 is a Patwari in Revenue Department and has knowledge of the land laws whereas the plaintiffs are illiterate and innocent villagers The plaintiffs came to know in June, 1966 that the defendant's rights have ceased in the laud in dispute since the commencement of the Rajasthan Zamindari and Biswedari Abolition Act and defendant No. 1 had no right to transfer the land as the same has been vested in the Government of Rajasthan. The defendant No. 1 by practising fraud and mis -representation taking under advantage of the plaintiffs' ignorance of law, obtained a sum of Rs. 17,500/ - under the pretext of executing the sale -deed, The plaintiffs averred that they had been in possession of the land as tenant since 1954 -55 and on the date of the commencement of Rajasthan Zamindari and Biswedari Abolition Act they were in possession of the land in dispute as tenant and on that day the title of the defendant No. 1 had ceased and the plaintiffs became the Khatedar tenant of the Government of Rajasthan and as such the agreement dated 23 -6 -64 was illegal and void. It was also alleged that the defendant No. 1 had already entered into an agreement on 10 6 65 with his nephews Madanlal and Krishankumar to settle eight bighas thirteen biswas land out of the aforesaid 37 bighas 5 biswas land. Madanlal and Krishankumar filed a suit in the court of Civil Judge, Suratgarh for the enforcement of that agreement. The said suit was decreed by the trial court and affirmed by the first appellate court and the defendant No. 1 went in appeal before the Hon'ble High Court which was decided on 11 -4 -66. During the pendency of that appeal the defendant No. 1 entered into an agreement on 23 -6 -64 even with regard to the land which was the subject matter of the appeal before the Hon'ble High Court. On this ground as well the agreement with the plaintiffs was illegal and without authority and void. The Hon'ble High Court dismissed the suit for specific performance of the agreement dated 10 -6 -66 on the ground that the land vested in the Government of Rajasthan on the commencement of the Rajasthan Zamindari and Biswedari Abolition Act and so it was alleged that agreement with the plaintiffs dated 23 -6 -64 is ineffective against them and the defendant No. 1 is liable to return the sum of Rs. 17,500/ -.
(3.) THE plaintiffs also claimed that under the terms of the agreement a sum of Rs. 6000/ - by way of damages as the defendant No 1 has failed to perform the contract. In case a sum of Rs. 6000/ - is not allowed to the plaintiffs by way of damages under the void agreement, the plaintiffs may be allowed a sum of Rs. 6000/ - on account of interest by way of damages on the rate of Rs. 1.9 annas per month.;