Point of Law: In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by High Court unless findings so recorded are shown to be perverse.

JUDGMENT :

Sandeep Sharma, J.

Instant Regular Second Appeal filed under Section 100 CPC takes exception to judgment and decree dated 31.7.2008 passed by learned Additional District Judge Una, in Civil Appeal No. 36 of 2005 affirming judgment and decree dated 19.1.2005 passed by Civil Judge (Junior Division) Court No.II Una, Himachal Pradesh in Civil Suit No. 112 of 1989, whereby suit for specific performance of contract with consequential relief of permanent injunction, having been filed by appellants/plaintiffs (hereinafter, ‘plaintiffs’) came to be dismissed.

2. For having bird’s eye view of the matter, facts necessary for the adjudication of the case are that predecessor-in-interest of the plaintiffs, namely Attar Chand, filed a suit for specific performance of contract for registration of sale deed and transfer of possession, whereby it was agreed to sell land measuring 27 Kanal comprising of Khasra No. 1639 (old 174/6 min.), 1641 (old 174/6 min.) 1644 (old 174/5 and 175/1/1 min.), 1645 (old 175/1/1 min.) bearing Kheat No. 27 (ld Nno. 152 min.) Khatauni No. 28 (ld No. 156) as reflected in copy of Khatauni prepared as per latest Settlement and Jamabandi for the years 1981-82 situate in Village Basal, Hadbast No. 194, Tehsil and District Una, Himachal Pradesh (hereinafter, ‘suit land) with consequential relief of permanent prohibitory injunction restraining the defendants from interfering in the possession of the predecessor-in-interest of the plaintiffs and from alienating the suit land during the pendency of the suit. Plaintiffs averred in the suit that predecessor-in-interest of defendants Ram Paul, during his life time entered into agreement dated 26.8.1983, for consideration of Rs.7,000/-, which was received by him vide agreement to sell dated 10.11.1979 and 26. 8.1983 and then possession of the suit land was given to the predecessor-in-interest of plaintiff. Plaintiff claimed that the possession by the predecessor-in-interest of the defendants was also given to their predecessor-in-interest and since then they are in possession. Plaintiffs claimed that as per agreement dated 26.8.1983 sale deed was to be executed within three years but despite having shown willingness by their predecessor-in-interest and by them, predecessor-in-interest of defendants and defendants themselves are not coming forward to execute the sale deed. Plaintiffs averred that before sale deed could be executed, their predecessor-in-interest Ram Paul passed away on 30.11.1986 and thereafter mutation of suit land was entered in the name of Smt. Kamla Devi, widow of Ram Paul vide No. 6149 dated 8.5.1987. Plaintiffs further alleged that they had been approaching defendants for execution and registration of sale deed dated. 26.8.19883 but on one pretext or other, defendants are not coming forward to execute the sale deed. Plaintiff claimed that defendants refused to get the sale deed executed and threatened to interfere in their possession and alienate the suit land. Plaintiffs claimed that though they served legal notice dated 7.4.1989 upon defendants showing their willingness to perform their part of contract and requested them to give date, time and place but defendants neither replied nor came forward to get the sale deed executed.

3. Claim put forth by the plaintiff came to be resisted by defendants by filing separate written statements.

4. Defendant No.1 apart from taking preliminary objection with regard to limitation, denied execution of agreement to sell, if any, by his predecessor-in-interest. He also stated that though there was no agreement to sell executed by his predecessor-in-interest but if it was found to have been executed, same is result of fraud and mis representation having no adverse effect upon right, title and interest of the defendants.

5. Defendants Nos. 2 to 8 specifically claimed that the suit is barred by the principle of res judicata. On merit, they claimed that their father Ram Paul never executed agreement to sell and same was