2004 Supreme(Raj) 1832
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Dinesh Maheshwari, J.
Deegram and Others - Appellant
Versus
Suchcha Singh & Others - Respondent
S.B. Civil Regular First Appeal No. 116 of 1989.(Against the judgment and decree dated 5.8.1989 passed by Shri Nemichand Garg RHJS, Addl. District Judge, Kishangarhbas in Civil Suit No. 24 of 1984 Babulal and others v. LRs of Bhagwan Kaur and another).
Decided On : 22-12-2004
For the Appellants:Ritu Somani for Praveen Balvada, Advocates.
For the Respondents: None.
Headnote:
Payment made in agreement to sell not proved by witnesses- hence order made to vendee to make payment- suit dismissed and there was no que of genuineness of sale deed.
JUDGMENT
1. - This first appeal by the plaintiffs No. 2 to 7 is directed against the judgment and decree dated 5.8.1989 passed by the Addl. District Judge, Kis iangarhbas District Alwar in Civil Suit No. 24/84 Babulal and Others v. LRs of Bhagwan Kaur and another , whereby the learned Addl. District Judge dismissed the suit for specific performance filed by the plaintiffs.Briefly put the facts relevant are that the present appellants-Deegram, Shanti De Surendra Singh, Balveer Singh, Baghsingh and Sureshchand along with one Babulal filed a suit for specific performance of the alleged agreement against Mst. Bhagwan Kaur and Suchcha Singh with the averments that agricultural land in Khasra No. 374 measuring 1 bigha 11 biswas at village Dantla Tehsil Mundawar was the khatedari land of defendant No. 1 Bhagwan Kaur who entered into an agreement to sell the said land with the plaintiffs on 29.7.1984 for a consideration of Rs. 38,000/- and received Rs. 14,000/- from the plaintiffs that very day and delivered possession of the suit property to the plaintiffs. In relation to the transaction, an agreement to sell was got scribed from Gulabchand. Document Writer in favour of the plaintiffs and the defendant No. 1 put her thumb impression also thereupon and a receipt for the amount of Rs. 14,000/- was also executed on the agreement itself by putting thumb impression and the signatures of the witnesses also. The parties agreed that within a month of the agreement, sale document would be got registered, expenses would be borne by the plaintiffs and the remaining amount of Rs. 24,000/- would be received at the time of registration. According to the plaintiffs, they requested the defendant No. 1 to execute the sale document and got served a notice by registered post also on 17.9.1984 through their lawyer for execution of the sale document according to the agreement but defendant No. 1 denied the agreement and alleged the land in question having been sold to defendant No. 2 Suchcha Singh in the reply to the notice. The plaintiffs averred that Suchcha Singh, defendant No. 2 was the son of defendant No. 1 and the alleged sale deed was sham and fictitious inasmuch as in between the two, neither any amount has been exchanged nor possession has been transferred and this sale document has been executed only in order to grab the amount of the plaintiffs. The plaintiffs averred that they were always ready and willing to get the document executed in their favour. The plaintiffs claimed their entitlement to get the sale deed in favour of defendant No. 2 cancelled and were also entitled for injunction against the defendants for not interfering with their possession nor to alienate the property in question. The 35 plaintiffs further averred that cause of action for filing the suit arose on the date of agreement 29.7.1984, on the date of the sale deed dated 11.9.1984 and from the refusal on 20.9.1984. The plaintiffs prayed for a decree for specific performance in their favour for the land in question against the defendants and for injunction and also prayed in the alternative that if the specific performance of the agreement was not possible then the amount of Rs. 14,000/- be awarded in their favour. The plaintiffs presented the plaint on 10.10.1984.
2. Summons to the defendants were issued. Defendants filed their written statement on 18.12.1984. Defendants denied any sale agreement having been executed on 29.7.1984 and alleged that the entire story was concocted and got prepared with the connivance of the son of defendant No. 1 Jangir Singh. Defendants also denied receiving of any amount of Rs. 14,000/- The receipt of the notice dated 17.9.1984 was admitted and it was averred that notice was replied on 20.9.1984 stating clearly that defendant No. 1 has sold the land of Khasra No. 374 to defendant No. 2 who was in possession of the same. The possession of the plaintiffs was specifically denied. In the additional submissions, the defendants stated that the d
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