- (1.) THE defendant has filed this Special Appeal against the judgment of learned Single Judge dated 23. 11. 1983 passed in Civil First Appeal No. 7/1972 whereby the appeal filed by the appellant was dismissed and the judgment and decree dated 9. 9. 1971 passed by learned Addl. District Judge, No. 2, Sriganganagar was confirmed. THE facts relevant for the disposal of this appeal lie in a narrow compass and may be summarized as under.
(2.) THE defendant-appellant was allotted 22 bighas of land in Chack No. 6 JRK on 12. 8. 1966 by the Senior Settlement Officer, Ministry of Re-habilitation, Government of India, Sriganganagar. Since full payment of instalments was not made, `sanad' was not granted to the defendant-appellant. When he entered into an agreement with the plaintiff-respondent for the sale of above land for a consideration of Rs. 28600/- at the time of execution of the agreement the defendant-appellant obtained a sum of Rs. 16000/- from the plaintiff as part of sale consideration and the plaintiff-respondent was put into possession of the aforesaid land by the defendant-appellant. THE defendant-appellant agreed that by 15th July, 1967 he would deposit the balance of the amount of instalment in the Settlement Department of Government of India and after obtaining `sanad' he will execute the sale- deed in favour of the plaintiff-respondent. THE defendant- appellant further agreed to pay a sum of Rs 32000/- in case of breach of contract on his part. The plaintiff-respondent averred before learned trial Judge in his suit for specific performance of contract that he was always ready and willing to perform his part of the contract but the defendant refused to perform his obligation under the above contract. The plaintiff, therefore, filed the suit claiming relief of specific performance of the contract. Averments in respect of improvement of the land were also made by the plaintiff. The defendant-appellant contested the suit and pleaded that he was not the only allottee of the land in question and the land was allotted to other members of his family as well. Hence, the contract was not enfor- ceable against him as other members of the family are not bound by the aforesaid contract. The defendant also denied receipt of Rs. 16000/- as part payment for sale consideration. The defendant also resisted the suit of the plaintiff on the ground that till `sanad' was not granted to him, the above contract cannot be specifically performed. The defendant further pleaded that since the above contract contains the specific amount of liquidated damages in case defendant fails to perform the contract, the plaintiff can only claim damages as mentioned in the contract. On the pleadings of the parties, following issues were framed by learned trial court : "1) Whether the defendant did not receive a sum of Rs. 21000/- against the sale price of the land in question? 2) Whether the Government of India and the Rajasthan Government are necessary parties to the suit as the land in question is comprised in compensation pool? 3) Whether the land in question was allotted to the defendant and his family members jointly hence the defendant was not authorised to sell the above land? 4) Whether the plaintiff is entitled to a decree for specific per- formance? 5) Relief?" The defendant produced himself as DW1 and Bachchu Ram as DW2 in his evidence. The plaintiff examined himself as PW 1.
(3.) THE trial court decided issue No. 1 against the defendant and in favour of the plaintiff by holding that a sum of Rs. 21000/- was paid by the plaintiff to the defendant towards sale price of the land in question. Issue No. 2 was held against the defendant. Under issue No. 3, the learned Addl. District Judge held that the land in question was allotted to the defendant only and not jointly to the defendant and his family members hence the agreement between the plaintiff and defendant was valid and enforceable. Issue No. 4 was also decided in favour of the plaintiff and learned Addl. District Judge found that the relief of specific performance of the agreement can be given to the plaintiff in the facts and circumstances of the case. THE suit of the plaintiff, therefore, was decreed and the defendant was directed to execute the sale-deed in favour of the plaintiff within three months after obtaining `sanad' on payment of remaining instalments and the plaintiff was directed to pay the remaining amount of sale consideration being Rs. 7600/- to the defendant. In the alternative, it was also ordered that in case `sanad' was not granted to the defendant, the plaintiff will be entitled to refund of Rs. 21000/- from the defendant provided he hands-over possession of the land in question back to the defendant. Being dis-satisfied with the above judgment and decree, the defendant preferred appeal before a learned Single Judge of this Court which was decided o n November 23, 1983. Before the learned Single Judge, it was urged that the land was allotted by the Rehabilitation Department to the defendant for maintenance of his family on instalment basis. The defendant and his family members had come to India as refugees from West Pakistan. As the land was allotted to the family, every member of the family was having right, title and interest in the property and the defendant alone was not competent to dispose of the same to the plaintiff. The above submission was rejected by the learned Single Judge relying on decision in the case of Deena Nath vs. Chunni Lal (1), on the ground that as per the allotment order Ex. 2 the land in question was allotted to the defendant alone. The defendant was, therefore, estopped from pleading that he was not the only allottee but his family members were also other allottees. ;