The main legal point established in the judgment is that the stipulation in the agreements requiring the payment of double the sale consideration received if the sale deed was not executed disentitled the plaintiff to seek the decree for specific performance of the Contract.

JUDGMENT :

DHARAM CHAND CHAUDHARY, J.

1. Defendants are in second appeal before this Court. They are aggrieved by the judgment and decree dated 29.9.2009, passed by learned Additional District Judge (I), Kangra at Dharamshala in Civil Appeal No. 21-G/05, whereby the appeal preferred by respondent-plaintiff has been allowed and the suit decreed whereas the cross-appeal they filed dismissed.

2. It is seen that learned Civil Judge (Senior Division), Dehra, District Kangra has dismissed Civil Suit No.139/96, qua relief of specific performance of the agreements dated 22.6.1983 and 9.5.1986 Ex.PW-6/A and Ex.PW-4/A, respectively, however, decreed the same for the alternative relief i.e. recovery of Rs.12,000/- against the appellants- defendants.

3. The bone of contention between the parties is land measuring 0-31-35 hectares bearing Khasra No.82 situate in Mohal Sudhangal, Mauza Chokath, Tehsil Dehra, District Kangra. Hukam Chand, the predecessor-in-interest of the defendants, was ownerin- possession thereof. The respondent-plaintiff claims that said Shri Hukam Chand entered into an agreement dated 22.6.1983 Ex.PW-6/A with him qua sale of the suit land in a sum of Rs.12,000/-. On payment of the sale consideration in lump sum he was put in possession of the suit land. The sale deed was agreed to be executed on and after the land is got redeemed from mortgage. So the time was extended vide subsequent agreement Ex.PW-4/A, dated 9.5.1986. Said Shri Hukam Chand failed to execute the sale deed during his life time. On his death the suit land came to be inherited by the defendants being his legal heirs. When they started causing interference in the suit land, he filed, a civil suit bearing registration No.266/95 for seeking decree of permanent prohibitory injunction came to be filed against them. It is during the pendency of the said suit, the plaintiff came to know about the loan raised against the suit land stands paid by defendant No.2 on 15.3.1993 from reply to the notice dated 7.8.1995, he served upon the defendants. The previous suit i.e. Civil Suit No.266 of 1995 was dismissed as withdrawn vide order dated 9.3.1999 Ex.D-5. On coming to know that the loan raised against the suit land was paid by the defendants, the present suit has been filed for the decree of specific performance of the agreement dated 22.6.1983 read with agreement dated 9.5.1986 qua the sale of the land entered in Khewat No. 24 min, Khatauni No.42 min old Khewat No.22, Khatauni No.41 new Khasra No.82 measuring 0-31-35 hectares (8 kenals 3 marlas) with a further direction to the defendants to execute the sale deed in favour of the plaintiff and on their failure to do so through the nominee of the Court. By way of the decree of Permanent Prohibitory Injunction, the defendants have been sought to be restrained from causing interference, in any manner, in the possession of the plaintiff over the suit land and also that in case they succeed in taking the possession thereof forcibly to decree the suit for the relief of possession also. In the alternative, the suit was sought to be decreed for the recovery of Rs.12,000/- together with interest @ 12% per annum from the date of agreement Ex.PW-6/A i.e. 22.6.1983 till payment thereof.

4. The defendants have contested the suit. In the preliminary they have raised objections regarding the maintainability of the suit in the present form, estoppel and that the same is barred under Order 2 Rule 2 of the Code of Civil Procedure. On merits, while admitting that the owner of the suit land was their predecessor-in-interest Shri Hukam Chand, it is submitted that on his death they inherited the same. It is denied that said Shri Hukam Chand had executed agreements dated 22.6.1983 and 9.5.1986 agreeing thereby to sell the suit land to the plaintiff in a sum of Rs.12,000/- and deliver the possession thereof also to them. It is also denied that the suit land was mortgaged with Soil Conservation Department, however, it is admitted that their pred