The main legal point established in the judgment is the finding that the plaintiff was in breach of the agreement to sell, and the consideration of the collusive nature of the judgment and decree dated 28.07.2007 and 07.10.2007, along with the legal principles from relevant case law and documentary evidence.

AMIT RAWAL, J.

1. The appellant-defendants are in Regular Second Appeal against the concurrent findings of facts and law, whereby, suit seeking recovery of Rs.11,20,000/- along with pendent lite interest at the rate of interest 6% per annum from the date of filing of the suit till its final realization, has been decreed. The appeal filed against the same was partly accepted and the judgment and decree of the trial Court has been modified to the extent that the respondent-plaintiff is entitled to recover the original claimed amount of Rs.10 lacs from the defendants along with interest 6% per annum.

2. Before I could advert to the arguments of learned counsel for the parties, it would be in the fitness of things to give preface of the matter for adjudication of the dispute.

3. Respondent-plaintiff instituted a suit for recovery of aforementioned amount which included Rs.10,00,000/- as principal amount and Rs.1,20,000/- as interest at the rate of Rs.1/- per hundred per month from 02.05.2008 to 02.05.2009, in reference to the agreement to sell No.100 dated 02.05.2008.

4. As per the case set out in the plaint, it was averred that the plaintiff being resident of village Barwas, Tehsil Loharu, District Bhiwani and the defendants being resident of same village, by presuming themselves to be owners of the land comprising in khewat no.234, khatoni No.249, kites 19, total measuring 92 kanals 03 marlas situated at village Barwas, Tehsil Loharu, District Bhiwani, on the basis of mutation no.975, had agreed to sell 800/1843 shares i.e. 40 kanals to the plaintiff on 2.5.2008 for a total sale consideration of Rs.30,00,000/- against the receipt of Rs.10,00,000/- as earnest money from the plaintiff in view of the agreement to sell dated 02.05.2008, ibid. The date for execution and registration of the sale deed was fixed as 02.05.2009.

5. As per the averments, the plaintiff was told by the defendants that the said land was free from all encumbrances. It was further averred that the plaintiff came to know that defendants were not owners of the property as they had acquired the title on the basis of judgment and decree dated 07.10.2007 (Ex.P39) from Jagan Nath, who had become the owner by virtue of a decree dated 28.07.2007 (Ex.P6) passed in civil suit No.155 of 2006, wherein, one Parwati was arrayed as co-sharer but she had already died in the year 2006, i.e., 26.04.2006. There was every likelihood that decree could be challenged and the plaintiff may be deprived of ownership and title in the sale deed, as per terms and conditions of the agreement to sell, ibid, if executed. One of the enquiry revealed that the children of Parwati had been threatening to get the decree dated 28.07.2007 (Ex.P6) set aside. It is in this background of the matter, the only relief of recovery was sought.

6. The aforementioned suit was contested by the appellant-defendants by taking various preliminary objections with regard to cause of action, locus standi, maintainability, estoppel by denying that the aforementioned decree was obtained by playing fraud upon Parwarti or any threat was ever extended by the children of Parwati to Jagan Nath in a suit titled as Jagan Nath vs. Suraj Mal.

7. Since the parties were at variance, the following issues were framed by the trial Court:-

“1. Whether the plaintiff is entitled to recovery of Rs.11,20,000/- from the defendants along with interest at the rate of Rs.1% per month, as alleged in the head note of the plaintiff, if so to what effect? OPP

2. Whether the suit is not maintainable in the present form? OPD

3. Relief.”

8. The trial Court on the basis of the preponderance of the evidence, decreed the suit by rejecting the objections raised by the defendants and the appeal preferred against thereof, has been dismissed.

9. Mr. Alok Jain, learned counsel for the appellant-defendants contented that the judgments and decrees are outcome of perversity as the defendants had marked the presence before the Sub-Registrar on 01.05.2009 (Ex.D1