IMPORTANT POINT
Specific Performance--Agreement to sell--Bar to suit--Agreement brought to be enforced was subject matter of litigation on earlier occasion--Relief of Specific performance was available to plaintiff when previous suit was filed--Suit is barred under Order 2 Rule 2 of CPC.

Vinod K.Sharma,J. (Oral).:- This is plaintiff/appellant’s regular second appeal, against the judgment and decree dated 24.12.2009, passed by the learned courts below vide which suit filed by the plaintiff/appellant for possession by way of specific performance of agreement dated 25.7.1989 was dismissed.

2. The facts leading to the filing of the suit by the plaintiff are that Bharat Mittal, defendant No.10, son of Jai Parkash is the real brother of defendants No.1 to 9. Bharat Mittal defendant No.10 agreed to sell land measuring 26 kanals 1 marlas vide agreement to sell dated 1.8.1985.A sum of Rs.20,000/- (Rupees twenty thousand only) was paid as earnest money. Another sum of Rs.30,000/- (Rupees thirty thousand only) was deposited by the plaintiff as trust money which was to be counted as earnest money for the landed property of defendants No.1 to 9 and their mother Sarla Devi.

3. Later on Bharat Mittal consented to sell the land falling to the share of defendant No.1 to 9 and his mother Sarla Devi vide agreement referred to above. In pursuance to the agreement 80 per cent of the sale deeds of the landed property of defendants No.1 to 9 were executed by Bharat Mittal in his capacity as general attorney, as also more than 90 per cent of the area of their mother Sarla Devi was sold directly by Sarla Devi. It was, thus, claimed that agreement dated 1.8.1985 was binding on defendants No.1 to 9, as it was acted upon by the defendants without any objection, though, through their general attorney, defendant No.10. It was the further pleaded case of the plaintiff, that he was permitted to demarcate the plots, at the spot to enter into agreement with intending purchasers.

4. Plaintiff entered into an agreement to sell, qua some of the plots and received earnest money for sale. Sale deeds qua 15-16 plots were executed by defendant No.10, in his capacity as general attorney for defendants No.1 to 9. After floods in September, 1988, landed property measuring 1778 square yards, was illegally occupied by adjoining owners/occupants. In spite of information by the plaintiff to defendant No.10, no action was taken by the defendants. This area was said to be in unauthorised possession of Bachan Singh etc., which could not be transferred through sale deeds although 1000 square yards was agreed to be sold to one Bachint Singh son of Kishan Singh and Ajit Singh son of Dasundha Singh.

5. It was also the case of the plaintiff that dirty water of 27 dairies was passing through the land in dispute, and another 5 acres of the land stood inundated, which could not be sold as kacha badh at the bank of Budha nala was destroyed and water of Budha Nala used to flow in these plots even in the event of a small showers. It was also the case of he plaintiff that Bachan Singh etc. had encroached upon western strip of land including 1778 square yards of land which was never got vacated by defendants No.1 to 10 since September, 1988. Transaction of landed property, therefore, could not be completed within 4 years i.e. up to 31.7.1989.

6. Another agreement was executed between the plaintiff and defendant No.1, in his personal capacity and as general attorney of defendants No. 1 to 9 and he also took responsibility for his mother on 25.7.1989. This agreement was valid up to 25.7.1993. Rate of land was increased from Rs.2,00,000/- (Rupees two lacs only) per acre to Rs.2.25 lacs (Rupees two lacs and twenty five thousand only) per acre. Sale deeds were executed by defendant No.10 of his personal land, and also for plots of defendants No.1 to 9, through general attorney. It was the case of the plaintiff, that he was ready and willing and was still ready and willing to get the sale deeds executed for 988 square yards, as shown in site plan No.1 and II. He was also ready to get the sale deed executed vide plan No.III for 1778 square yards, at the cost of defendants without getting it vacated from Bachan Singh etc. who were in unauthorised possession, at the rate o