Rameshwar Singh Malik, J.

C.M. No. 370-C of 2012

1. Applicant seeks exemption from filing certified copies of Annexures A-1 (colly) and Annexure A-2.

Application is allowed, as prayed for.

C.M. stands disposed of.

RSA No. 528 of 1987

Present appeal, at the instance of defendants, is directed against the judgment of reversal, whereby first appeal of the plaintiffs was allowed by learned District Judge, Faridkot, decreeing their suit for specific performance.

2. Brief facts of the case, as recorded by learned District Judge in the impugned judgment, are that plaintiffs filed suit for specific performance of the agreement to sell dated 24.9.1979 relating to the land in dispute which was executed by Mika Singh and Jang Singh defendants No. 1 and 2 in their favour to sell that land on the conditions of the sale price etc., provided therein. The sale deed was to be executed by 12.6.1980. Notice was given by the plaintiffs to these defendants when they did not execute the sale deed and then a writing on the back of the agreement was executed on 23.6.1980 extending the period up to 20.7.1980 for the execution of the sale deed. Defendants did not execute the sale deed. The suit was filed by the plaintiffs for specific performance of the contract on 21.8.1980. They also got the interim temporary injunction on that very day restraining these defendants from alienating the land to some other person, but these defendants sold the land to defendants No. 3 to 8, vide sale deed Ex. D2 to D5 executed on 22.8.1980 and Ex. D3 and D4 on 25.8.1980. These defendants were later on added when the objection was taken by defendants No. 1 and 2 that they had sold the land to them.

3. The defendants took the plea that the agreement of sale in favour of defendants No. 3 to 8 had already been executed by defendants No. 1 and 2, on 24.11.1978, Ex. D 1 and that as such, the agreement executed in favour of the plaintiffs thereafter, can have no precedence over them. Objections were also taken that the plaintiffs are estopped to file the suit and that defendant No. 3 to 8 are bonafide purchasers for consideration.

4. On completion of the pleadings, following issues were framed by the learned trial court:--

"1. Whether defendants No. 1 and 2 entered into an agreement to sell dated 24.9.1979? If so, on what terms and to what effect? OPP

2. Whether the plaintiffs have been ready and willing to perform their part of the contract? OPP

3. Whether the plaintiffs are entitled to recover a sum of ` 23,000/- by way of alternative relief? OPP

4. Whether defendants No. 3 to 8 are bonafide purchasers for consideration vide registered sale deed without notice? OPD

5. Whether the plaintiffs are estopped by their own act and conduct from filing this suit? OPD

6. Relief"

5. In order to substantiate their respective stands taken, both the parties led their oral as well as documentary evidence. After hearing learned counsel for the parties and going through the evidence brought on record, learned trial court came to the conclusion that the plaintiffs have failed to prove their case, but they were held entitled for the alternative relief of recovery of earnest money. Consequently, relief of specific performance of the contract was declined and the suit was partly decreed qua alternative relief of recovery of earnest money alongwith interest, vide judgment and decree dated 31.10.1984. Feeling aggrieved, plaintiffs filed their first appeal which came to be allowed by the learned District Judge, Faridkot, vide impugned judgment and decree dated 27.11.1986. Hence this second appeal at the hands of defendants.

6. Learned senior counsel for the appellants submits that plaintiffs-respondents were not ready and willing to perform their part of the contract. Findings recorded by the learned first appellate court in para 9 of the impugned judgment were contrary to the record. In his affidavit Ex. P2, Mandeep Singh-plaintiff was conveniently silent whether he was ready with money to pay the balance sale con

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