PATHAK, J. - (1.) THE first appeal under Section 96 CPC has been filed against the judgment and decree dated 27. 8. 2003 passed by learned Addl. District Judge No. 1, Hanumangarh, in Civil Suit No. 114/2002 (22/1999) (47/1998)Baxis Singh vs. Mst. Gurdev Kaur & Anr. , whereby the suit against defendant No. 1 was decreed with cost and it was ordered that the Defendant No. 1 shall get the sale-deed in respect of the disputed land written and executed at the expenses of the plaintiff and shall get it registered before the competent officer within a period of two months from the date of the order. It was further ordered that on Defendant No. 1's failing to do so within the specified period the plaintiff shall have the right to get the sale-deed written and executed and getting it registered in his favour through the Court.
(2.) THE facts of the case inter alia stated in the suit filed by Plaintiff-Respondent No. 1 Baxis Singh in the year 1998 against Mst. Gurdev Kaur for specific performance of the agreement dated 27. 5. 1996 in respect of various lands, the details of which find mention in Para No. 2 of the plaint, are to the effect that defendant in whose name the agricultural lands in various kilas of Chak 17 LLW, Tehsil Hanumangarh are entered in the revenue records, is an old aged lady suffering from ailment and is unable to lookafter the same so she has executed a General Power of Attorney in favour of her nephew Baggasingh s/o Chandsingh to do all such acts on her behalf in respect of transfer, mortgage, giving it on contract etc. which was attested and verified in the office of Sub Registrar, Ganganagar on 30. 4. 1993. It is further stated in the plaint that the defendant was in need of money, so she through her Power of Attorney Bagga Singh agreed to sell the aforesaid lands which was 24 Bighas and 13 Biswas @ Rs. 16,400 per bigha to the plaintiff, the possession of which alongwith canal water turn was already with the plaintiff, for a total sum of Rs. 4,02,000 and she received Rs. 60,000/- on 30. 12. 1993 and Rs. 2,90,000 on 5. 2. 1994 and the balance amount of Rs. 52,000/- has been paid to the defendant on the date of execution of the agreement for sale and there remains nothing due in respect of the agricultural lands. THE deed written and attested by the Notary Public was handed over to the plaintiff. It is further stated that the plaintiff is an agriculturist, who is in possession of the land continuously and the Girdawari Nahari (Sudhakar) is in his name and he is making payment of it. THE condition of the agreement says that on the defendant denying to get the registry done, the purchaser shall have the right to get the registry done through Court for which the defendant will be responsible for the expenses. It is also stated in the plaint that since then the plaintiff is in possession of land as Khatedar agriculturist and making payment of Lagan, Rakam & Abyana etc. to the Govt. after the purchase of the land and has developed the land by spending the money. It is further stated that he was always having money for the registry and was ready and willing to perform his part of contract but the defendant was not taking steps for getting registry done as per agreement for the reason that there has been escalation in the value of the land and further that as she has received the entire amount of the disputed land she was not interested in getting registry done on false pretexts despite asking time and again. Finally, when she was asked to get the registry done on 12. 6. 1998 at Jodkiya, she clearly refused to the request of the plaintiff as she was inclined to dispose of the land to some other person. It is claimed, as the defendant was not desirous to fulfill her part of contract, the plaintiff was entitled to obtain a decree for specific performance of the contract. In the alternate it was prayed that if for any reason a decree for specific performance of the agreement is not granted, a decree for the double of the amount paid by plaintiff be passed. Sukhdev Singh, the present appellant herein, filed an application before the learned Trial Court on 8. 1. 1999 for impleading him as party respondent in the suit inter-alia stating that the land in question is his Khatedari land as Late Shri Buta Singh, owner of the land made a register Will on 15. 1. 1979 in his favour and others and mutation thereof was attested in his name on 4. 5. 1979. It was also stated that the The land in question was attached in the proceedings under Section 145 Cr. P. C. and in the final order passed holding Mst. Gurdev Kaur in possession of the land. For getting the land back, he filed a suit under Section 183 of the Rajasthan Tenancy Act on 28. 10. 1995 before the Revenue Court [sdo (Revenue), Hanumangarh], which was decided in his favour on 11. 3. 1997 and in execution thereof physical possession of the land was handed over to him by the Tehsildar on 25. 4. 1997. It was further stated that against that judgment and decree dated 11. 3. 1997 plaintiff filed an appeal before the Revenue Appellate Authority, which was rejected on 3. 11. 1998. It was also stated that the plaintiff on the basis of a forged agreement has filed the suit in collusion with defendant and concealed the material facts. It was prayed that for just and proper decision of the suit the applicant be made a party in the suit. Plaintiff Baxis Singh emphatically denied the contents of the application moved for impleading defendant No. 1 party in the suit. It was further stated that the land stands in the Khatedari of Mst. Gurdev Kaur w/o Buta Singh Jat Sikh and she is tenant thereof. It was further stated that when the agreement was executed in favour of the plaintiff, then also the land stood entered in the Khatedari of Mst. Gurdev Kaur. It was stated that neither Sukhdev Singh had any right or interest in the land nor there existed any Will in his favour because Sukhdev Singh himself gave statement before the Court of learned ADJ, Hanumangarh Junction to the effect that no such Will was executed by Buta Singh in his favour. It was also stated that in respect of the mutation entered in the name of defendant No. 2, a revision petition is already pending before the Revenue Board and stay order is continuing. The applicant, who has no concern with the disputed land, is a stranger to the suit, therefore, his application for impleading him as party may be dismissed. The learned Trial Court vide order dated 22. 7. 1999 accepted the application filed by Sukhdev Singh and ordered for impleading him as Defendant No. 2. Thereafter, Defendant No. 2 on 18. 8. 1999 filed written statement inter alia denying the averments made in the plaint and stated that the disputed land is not the Khatedari land of Defendant No. 1 but in fact it is in the Khatedari of Defendant No. 2 and despite that the plaintiff knowing it fully well in conspiracy with Defendant No. 1 executed an illegal agreement through some General Power of Attorney and purposely not filed the Jamabandi of the disputed land. It was further stated that when Defendant No. 1 was not having any Khatedari rights in the disputed land then there was no authority vested neither in defendant No. 1 nor the Power of Attorney holder to deal with in respect of the aforesaid land. It was further stated that the Defendant No. 1 had no right to sell out the disputed land which is in the Khatedari of Defendant No. 2 and so far as the agreement in question dated 27. 5. 1996 is concerned, the same has been prepared in connivance with the said power of attorney as the agreement of the same date which was produced before the Revenue Appellate Court, Hanumangarh in the pending appeal is totally different. It was further stated that when the plaintiff is not in possession of the land in dispute, there is no question of improving the land and incurring expenditure on it. Further, it was stated that neither the so-called sale-deed is genuine nor the defendant has any right to get registry done in the name of plaintiff and further plaintiff is not entitled to get a decree for specific performance of contract on the basis of agreement in respect of Defendant No. 2's Khatedari land. In additional submissions, Defendant No. 2 stated that the disputed agriculture land, which is of his Khatedari land was mutated in his favour on 4. 5. 1979 in pursuance to the registered Will dated 15. 1. 1979 executed by late Buta Singh s/o Kapoor Singh. It was further stated that in due course of time proceedings under Section 145 Cr. P. C. in relation to the land in question took place and in those proceedings possession was ordered in favour of Defendant No. 1 under Section 183 of the Rajasthan Tenancy Act before the Sub Divisional Officer, Hanumangarh on 28. 10. 1995 which was registered as Revenue Suit No. 214/95 and same was decided in favour of Defendant No. 2 on 11. 3. 1997 and in execution proceedings the physical possession of the disputed land was received by him on 25. 4. 1997. The appeal filed against said judgment and decree dated 11. 3. 1997 by the plaintiff before the Revenue Appellate Authority was dismissed on 3. 11. 1998. It was further stated that the plaintiff unsuccessfully challenged the Will executed in favour of Defendant No. 2 by way of filing suits before the Revenue and Civil Courts. It was stated that Defendant No. 1 is neither having any interest in the disputed land nor she is its Khatedar but after the mutation recorded in his favour on the basis of the Will she in connivance with the Revenue authorities, she being the widow of late Buta Singh, got the Mutation No. 148 and 17. 3. 1994 entered in her name which was cancelled before the District Collector, Hanumangarh in Appeal No. 51/94 and the mutation attested in her favour was cancelled. It was stated further that the suit was filed by the plaintiff after filing of the appeal before the Revenue Appellate Authority against the judgment and decree awarded in favour of Defendant No. 2 declaring him as Khatedar and ordering possession to be handed over withholding the fact that Defendant No. 2 was having Khatedari in the land and Jamabandi of land in question was purposely not filed but a copy of Mutation No. 148 was filed, which had already been cancelled. The plaintiff has not bona fidely filed the suit therefore is not entitled to get equitable relief from the Court. The conspiracy is evident from the two agreements dated 27. 5. 1996 being different; one filed before the Revenue Appellate Authority, Hanumangarh and the other filed with the plaint before the Court. It was also stated that the plaintiff any how is desirous to obtain a decree for specific performance of the contract on the basis of forged agreement. It was prayed that the suit be dismissed with costs. On the basis of pleadings of parties, the learned Trial Court framed issues to the effect: (i) Whether the land mentioned in Para No. 1 of the plaint was of Defendant No. 1's Khatedari and possession, and was agreed to be sold through General Power of Attorney holder (on 30. 4. 1993 the General Power of Attorney registered) @ 16,400/- per bigha for a total sum of Rs. 4,02,000. A sum of Rs. 60,000 was received on 30. 12. 1993 and Rs. 2,90,000 on 5. 2. 1994 towards it and after receiving balance amount of Rs. 52,000 agreement was reduced in writing and possession of the land was handed over to the plaintiff? (ii) Whether the plaintiff was always ready and willing to get the registry done of the disputed land and is still ready but the Defendant No. 1 kept on making excuses and finally on 12. 6. 1998 clearly refused? (iii) Whether the plaintiff as per the conditions of the agreement is entitled to specific performance of this agreement? (iv) Whether the disputed land is the agricultural Khatedari land of Defendant No. 2, which was entered in his Khatedari on 4. 5. 1979 on the basis of Will dated 15. 1. 1979 executed by Buta Singh? (v) Whether in respect of this land litigation took place between Defendant No. 1 and Defendant No. 2 under Section 145 Cr. P. C. and Section 183 of the Tenancy Act and the same were decided in favour of Defendant No. 2? (vi) Whether the present suit has been filed by the plaintiff in connivance and conspiracy with defendant No. 1 and is liable to be dismissed? (vii) Relief?
(3.) PLAINTIFF in oral evidence got recorded the statements of PW. 1 Jagdish Rai Gupta, PW. 2 Jasjeet Singh, PW. 3 Aadram and himself as PW. 4. In defence, Defendant No. 2 Sukhdev Singh himself appeared before the Court as DW1 and producing DW2 Randheer Singh got his statement recorded. Both the parties in support of their pleas also tendered some documents in evidence. It has been contended by the learned Counsel for the appellant that the agreement to sale is not adequately stamped and registered one, therefore, it was not admissible in evidence. It has further been contended that the Trial Court has decreed the suit on the basis of Ex. 1, the agreement dated 27. 5. 1996, which is said to be executed by the Power of Attorney holder of defendant Smt. Gurdev Kaur, which is a false and fabricated document as the defendant-respondent Smt. Gurdev Kaur was not the Khatedar tenant of the land in question. Gurdev Kaur not being Khatedar tenant, neither she herself nor her Power of Attorney holder was having any authority under law to dispose of the land, which was in the tenancy of appellant-defendant No. 2. The learned Counsel submitted further that it is an admitted position on record that in the present matter pertaining to the disputed agricultural land regarding which litigation took place under Section 145 of the Cr. P. C. and in those proceedings the possession was found of Smt. Gurdev Kaur and when a suit for possession under Section 183 was filed by the defendant-appellant before the revenue Court, the same was decreed in favour of the appellant and the judgment and decree awarded in that suit is still not disturbed and is in favour of the appellant, therefore, the Trial Court was not justified in decreeing the suit for specific performance of the land which was not the Khatedari land of the defendant Smt. Gurdev Kaur. The learned Counsel submits that the Trial Court has seriously erred while appreciating the evidence led by the parties and deciding the issues. According to the learned Counsel, a fake agreement to sale was prepared in relation to the disputed land by the plaintiff in connivance with Defendant No. 1 as plaintiff and defendant both knew it well that Defendant No. 1 was having no Khatedari rights in the land. It has been submitted that the land in question is of the appellant as on account of a registered Will the land in question came in possession of the appellant by virtue of Will dated 15. 1. 1979 and the land in dispute was entered in the Khatedari of defendant No. 2 on the basis of the Will. The learned Counsel submits that if the Will was in favour of defendant No. 2 then there was no reason why on the basis of a forged document, said to be the agreement to sale, the suit was not liable to be decreed. In the last, learned Counsel submitted that it was the appellant who subsequently came to know about the collusive suit filed by Baxis Singh on the basis of alleged agreement to sale, then he moved an application before the learned Trial Court to implead him as a party and the Trial Court impleaded him party in the suit and he has been able to prove through various documents brought on record that the land in question came in his possession on account of a Will executed by Buta Singh, who was the owner of the land in question, and in that Will of the year 1979 some bighas of land were also given to Defendant No. 1 Smt. Gurdev Kaur. The learned Counsel submits that though the copy of the Will has not been produced but since reference has been made of the Will in various documents and judgments delivered by various courts, therefore, in the absence of Will to allow a decree of specific performance cannot be said to be legal, just and proper. In support of his submissions, the learned Counsel has placed reliance on Harish Singh & Ors. vs. Lalu Ram, RLR 1997 (1) 31, Khuraj & Anr. vs. Moti Lal & Ors. , 1998 DNJ Raj. 168, Jamna Bai vs. Tulsi Ram, 1996 DNJ Raj. 717, Kamla Shankar vs. Rattan Lal & Ors. , 1998 RRD 21, Nihal Singh vs. Singh Ram & Ors. , 1989 (1) RLR 384, Claude Pinto vs. M. V. Shankar Bhat & Anr. , 1996 (2) Civil Court Cases 609 (Kar.), Sitaram Tukaram Dangaval & Ors. vs. Sumantilal Chindulal Burad & Anr. , 1997 (1) Civil Court Cases 689 (Bom.), Lourdu Mari David & Ors. vs. Louis Chinnaya Arogiaswamy, 1996 DNJ (SC) 348, Kallathil Sreedharan & Anr. vs. Komath Pandyala Prasanna & Anr. , 1996 DNJ (SC) 452 and Ganesh Shet vs. Dr. C. S. G. K. Shetty & Ors. , 1998 (2) Civil Court Cases 711 (SC ). On the other hand, the learned Counsel has submitted that the land in question being in the Khatedari of defendant Gurdev Kaur and her Power of Attorney holder, who was her nephew and was having a registered General Power of Attorney of 1993 in his favour, received the consideration in relation to land in dispute, mention of which has been made in Para 2 of the plaint, on different dates and finally on 27. 5. 1996 when balance amount was paid, the deed was executed, therefore, the plaintiff respondent has the right to get the decree of specific performance in his favour of the agreement to sale executed in the present matter i. e. , Ex. 1. Learned Counsel submitted further that since after receiving the entire consideration for the disputed land when Defendant No. 1 Gurdev Kaur or her Power of Attorney did not take any steps for getting the registry of the land in favour of the plaintiff-respondent then the suit was filed. The Trial Court, on the basis of the pleadings of the parties, framed issues and found that Sukhdev Singh appellant had not right whatsoever in the disputed land and therefore, decreed the suit for specific performance of the contract for the reason that plaintiff respondent was always ready and willing to perform his part of the contract and Smt. Gurdev Kaur when failed to perform her part of contract after receiving the entire consideration, the suit was liable to be decreed. Learned Counsel submits that the Trial Court has recorded its finding on issues after elaborate discussion. It has been submitted further that the case of the appellant is mainly based on Will as would appear from the written statement filed by the appellant who was subsequently made Defendant No. 2 in the suit on the basis of the Will. Neither the registered Will nor a copy thereof has been placed on record, therefore, the Trial Court was justified in drawing adverse inference for not producing the will against Sukhdev, the appellant and the plaintiff's suit has been rightly decreed which requires no interference by this Court. It has been submitted that it is not necessary that the agreement to sale should always be a registered document. It is submitted that this document tendered in evidence requires to be examined under the provisions of Registration Act particularly in the circumstances that it was admitted in evidence without there being any objection to it. The learned Counsel submits that on the basis of Ex. 1 the suit has been decreed and the appeal filed, therefore, deserves to be dismissed. In support of his submissions, learned Counsel has placed reliance on following decisions: (1) RLR 1984 511gulam Mohammed & Anr. vs. Mst. Mariyam & Anr. (2) AIR 1985 Cal. 200himjit Construction vs. Tarun Sarkar (3) RLR 1982 pg. 1021girdhar Singh & Ors. vs. Anand Singh & Ors. (4) AIR 1990 Orissa 129chandra Sekhar Das & Anr. vs. Girdidhari Sahu & Ors. (5) AIR 1968 SC 1083mrs. Om Prabha Jain vs. Abnash Chand & Anr. (6) RLW 1974 Raj. 296durgadan vs. Devidan (7) RLR 2000 (2) 193harjeet vs. Megha & Ors. (8) RLW 2002 (2) 802narayan vs. Madan (9) WLC 1997 (UC) 377smt. Pushpa Kanwar & Anr. vs. Suraj Prasad Gupta (10) AIR 1961 SC 1655javer Chand vs. Pukhraj Surana (11) AIR 1994 SC 1653jattu Ram vs. Hakam Singh & Ors. ;