IMPORTANT POINT
Agreement to Sell--Specific Performance--Agreement was rendered inexecutable--Court was justified in granting alternative relief.

Mahesh Grover, J.:-This Regular Second Appeal is directed against judgment and decree dated 10.9.2002 of the Additional District Judge, Ludhiana (hereinafter described as ‘the lower Appellate Court’).

2. The plaintiff-respondent no.1, Atma Singh, filed a suit for joint possession of the land in dispute by way of specific performance of the agreement to sell dated 16.7.1990 in respect of land measuring 4 kanals situated in the revenue estate of Punian, Tehsil Samrala, District Ludhiana upon payment of balance sale consideration of Rs.12750/- after adjusting the earnest money of Rs.10,000/- or in the alternative, for recovery of Rs.10,000/- on account of earnest money and Rs.10,000/- as damages and interest. A declaration was also sought to the effect that the decree dated 14.9.1991 passed in civil suit no.42 of 31.1.1991 in favour of the appellant (arrayed as defendant no.3 in the suit), Kashmira Singh be declared null and void and along with this, a prayer for permanent injunction was also made seeking to restrain the defendants from alienating the suit property.

3. It was pleaded that Malkiat Singh, defendant- respondent no.2 was the owner of the suit land and he had executed an agreement dated 16.7.1990 to sell the same in favour of respondent no.1 at the rate of Rs.45,500/- per killa and agreed to execute and get registered the sale deed up to 15.6.1991. The earnest money of Rs.10,000/- from the sale consideration was paid at that time. In the event of the failure of the vendor, it was agreed that the sale deed could be executed through the intervention of the Court and in the alternative, the vendee would be entitled to recover a sum of Rs.20,000/-. Malkiat Singh failed to perform his part of agreement and rather, started making attempts to alienate the suit land in favour of some third party which resulted in a suit for permanent injunction having been filed by respondent no.1 on 28.8.1990. Malkiat Singh was restrained from alienating the suit land in favour of any other person vide stay order dated 29.11.1990 till the date of execution of the sale deed according to the agreement dated 16.7.1990, i.e. 15.6.1991 as per the stipulation contained therein. On the said date i.e. 15.6.1991, the suit for permanent injunction became infructuous. The balance sale consideration was tendered to Malkiat Singh on 13.6.1991 and respondent no.1 remained present in the office of Sub Registrar, Samrala on 14.6.1991 because 15.6.1991 was a gazetted holiday. On 17.6.1991, respondent no.1 again remained present in the office of Sub Registrar, Samrala, but Malkiat Singh did not turn up.

4. On the strength of the above pleadings, it was contended that respondent no.1 had always been ready to perform his part of agreement, but the vendor had defaulted in performing his part of agreement. The sale deed executed on 12.11.1991 in favour of appellant was sought to be declared as false and fictitious document.

5. The suit was contested by Gurdev Singh, who was arrayed as defendant no.2, the general power of attorney of Malkiat Singh, vendor (arrayed as defendant no.1). The execution of the agreement dated 16.7.1990 in favour of respondent no.1 was denied and it was pleaded that the said document is forged, fictitious and without any consideration. It was pleaded that civil suit no. 42 of 31.1.1991 had been decreed and the sale deed had been validly executed in favour of the appellant, who has become owner in possession of the suit land. It was further pleaded on the strength of the aforesaid contentions that the suit be dismissed with costs.

6. Appellant-Kashmira Singh (arrayed as defendant no.3 in the suit) also filed written statement controverting the averments of respondent no.1. He pleaded that Malkiat Singh had no right to execute any agreement to sell in favour of respondent no.1 because he had already executed an agreement dated 26.12.1989 to sell the suit land in his favour. The decree dated 14.9.1991 was passed in his favour and ag