IMPORTANT POINT
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Darshan Singh, J.

The present appeal has been preferred against the judgment and decree dated 09.12.2015 passed by the learned Additional District Judge, Hisar, vide which the appeal filed by the appellant-plaintiff against the judgment and decree dated 05.10.2011 passed by the learned Additional Civil Judge (Sr. Division), Hisar, has been dismissed.

2. Appellant-plaintiff has filed the suit for declaration to the effect that he is absolute owner in possession of the house constructed over the plot measuring 0 Kanal 6 Marlas comprised in Khasra no. 67//13/1/2(5-12) i.e. 6/112 share situated at Adampur, Tehsil Adampur, District Hisar on the basis of agreement to sell dated 15.12.2003.

3. As per averments in the plaint, defendants no. 1 to 9 were the owners in possession of the aforesaid plot. They entered into an agreement to sell dated 15.12.2003 in favour of the plaintiff for the sale of the aforesaid plot for a sale consideration one lac. The whole of the sale consideration was paid by the plaintiff on the same day in the presence of the witnesses. The entire terms and conditions were enshrined in the agreement to sell dated 15.12.2003. Defendants have agreed to get the sale deed executed and registered in favour of the plaintiff or his nominee. Defendants have also agreed that the plot in question would not be mortgaged or transferred in any manner and in case of default, they would be liable to face the action for the offence punishable under Section 420 of the Indian Penal Code. It is further pleaded that the plaintiff has raised the construction in the aforesaid plot as he was delivered the possession thereof on payment of the entire sale consideration. The plaintiff is legally entitled to get the sale deed executed and registered. Hence the suit.

4. Defendants-respondents contested the suit on the grounds inter alia that in fact the house in question was in existence for the last many years and was agreed to be sold to the plaintiff for a sum of Rs. 3 lacs. The whole of the sale price was to be paid at the time of registration of the sale deed. On 15.12.2003, defendants came to the premises of the office of the Sub-Registrar for registration of the sale deed. But, plaintiff in collusion with Rajinder Mohan, the petition writer committed fraud and got prepared the alleged agreement to sell without the consent of the defendants. No payment was made to them at the time of execution of the said agreement and the special power of attorney. The construction over the plot in dispute was raised by the father of the defendants long back.

5. Defendant no. 11-Smt. Birma Devi filed the separate written statement, wherein she pleaded that defendants no. 1 to 9 had sold the plot and the house constructed thereupon to defendant no.10-Subhash Chander vide registered sale deed dated 23.08.2007 and delivered the possession to him, who in terms further sold the same to her vide registered sale deed dated 29.07.2008 for a sale consideration of Rs. 1, 32,000/-. Defendant no. 11 further pleaded that she is a bona fide purchaser and was not having any notice of the so called agreement to sell dated 15.12.2003. With these pleas defendants-respondents, who had appeared to contest the suit, pleaded for dismissal of the suit.

6. It is pertinent to mention that the suit qua defendants no. 4 to 9 was dismissed by the learned trial Court vide order dated 01.09.2007.

7. From the pleadings of the parties, the following issues were framed by the learned trial Court vide order dated 08.08.2008:-

1. Whether the plaintiff is absolute owner in possession of house constructed over plot measuring 0 Kanal 6 Marlas as per mutation of inheritance No. 2847 of Adampur, as per jamabandi for the year 2002-03 on the basis of agreement dated 15.12.2003 and plaintiff is entitled to get the sale deed executed and registered in his favour from defendant? OPP.

2. Whether the suit of the plaintiff is not maintainable? OPD

3. Whether the suit is bad for non joinder and mis