- (1.) THE present appeal is directed against the judgment and decree dated 25-4-1990, passed by the trial Court, by which, suit for specific performance filed by the plaintiff appellants has been dismissed. The brief facts of the case are that a sale deed was executed by Thakur Ghanshyam Singh (now defendant No. 2 in the present appeal)in favour of one Mathuresh Chandra (since deceased and now represented by his legal heirs)on 3-8-1970. Another deed of re-conveyance was also executed by above mathuresh Chandra on 4-8-1970 to the extent that in case Thakur Ghanshyam Singh or his nominees make payment of Rs. 50,400/- within five years i. e. before 3-8-1975, above Mathuresh Chandra will have no objection in re-convey of the properties in question in favour of Thakur Ghanshyam singh or his nominees. It appears that subsequently Thakur Ghanshyam singh executed a sale deed in regard to part of the property in question on 28-6-1975 in favour of one of the appellants Bhikkilal for a consideration of Rs. 45,000/ -. Thakur ghanshyam Singh received Rs. 15,000/- in cash and Rs. 30,000/- was to be paid to mathuresh Chandra against Rs. 50,400/-for re-conveyance of the property. Another sale deed was also executed by Thakur ghanshyam Singh for remaining part of the suit property on 30-6-1975 in favour of Smt. Gyarsi Bai wife of Girdharilal and Teekam chand son of Girdharilal for a consideration of Rs. 35,000/ -. Thakur Ghanshyam Singh received Rs. 14,600/- and remaining Rs. 20,400/- was to be paid to Mathuresh chandra against remaining amount from the total of Rs. 50,400/- for re-conveyance of other part of the property in question.
(2.) AFTER execution of the above two sale deeds in favour of present plaintiff-appellants ] a notice was given on behalf of Thakur ghanshyam Singh to Mathuresh Chandra on 15-7-1975 in regard to sale of the above properties. Another notice was given on behalf of Bhikkilal to Mathuresh Chandra on 28-7-1975 for re-conveyance of the property in question. A telegram was also sent on 2-8-1975 on behalf of Thakur Ghanshyam singh and Bhikkilal. A reply was sent through telegram on behalf of Mathuresh chandra on 3-8-1975 with the assertion that thakur Ghanshyam Singh had already relinquished his rights in the property in question, as such, there was no question of any re-conveying of the property. The suit for specific performance was filed by the plaintiff-appellants thereafter. After completion of pleadings, following issues were framed by the trial Court on 18-10-1977:- "1. Did the defendant No. 1 execute the agreement dated 4-8-1970, in favour of the defendant No. 2 to re-convey the properties in suit to the defendant No. 2 or his nominees for Rs. 50,400/- up to 3-8-1975? 2. If issue No. 1 is decided in favour of the plaintiffs was the said agreement cancelled by the defendants by mutual consent and there was no subsisting agreement between them on 28-6-1975 and 30-6-1975? if so. its effect? 3. Did the plaintiff Nos. 1 and 2, by a sale deed dated 28-6-1975 and the plaintiff nos. 3 and 4 by a sale deed dated 30-6-1975 purchase from the defendant No. 2, his right to get the property in suit re-conveyed to him under the agreement dated 4-8-1970? 4. Whether the defendant No. 2 could bifurcate the agreement dated 4-8-1970 and require the defendant No. 1 to re-convey the property in portions under two sale deeds? if not, its effect? 5. Whether the plaintiffs always were and still are ready and willing to perform their part of the contract? 6. Whether the plaintiffs are entitled to get compensation from the defendant No. 1 as alleged in para 16 of the plaint? If so, at what rate? 7. Whether the suit is undervalued and court fee paid is insufficient? 8. To what relief, if any, are the plaintiffs entitled?"
(3.) THE plaintiff-appellants examined bhikkilal and Teekam Chand on their behalf, whereas, three witness namely; Gulab chand, Munnalal and Chandmal Sharma were examined on behalf of defendant-respondents. Thakur Ghanshyam Singh was also one of the defendants. However, did not examined himself nor any witness was produced on his behalf. After considering the evidence and material on record, the trial court decided issue Nos. 2, 3, 4 and 6 in favour of main contesting defendants as against the plaintiffs and defendant Thakur ghanshyam Singh and dismissed the suit accordingly vide impugned judgment and decree dated 25-4-1990.;