JUDGMENT

Arun Monga, J. (Oral)

CM-15598-C-2018

For the reasons stated in the application, same is allowed and delay of 42 days in filing the appeal is condoned.

CM-15597-C-2018

For the reasons stated in the application, same is allowed and delay of 44 days in re-filing the appeal is condoned.

Main case (O&M)

For convenience, parties herein are described as per recitals before learned trial Court.

2. Having suffered concurrent adverse findings by two Courts below, plaintiffs are in second appeal before this Court assailing the learned trial Court judgment and decree dated 12.03.2014, as upheld by learned First Appellate Court vide its judgment and decree dated 19.12.2017, dismissing the suit for specific performance of contract filed by appellant/plaintiffs.

3. Briefly stated, facts as noticed by Courts below are that defendants No.1 and 2, namely, Nirmala Devi and Jagdish were owners in possession of land measuring 12 Kanals 03 Marlas. It was inherited by them from their father Jainarain as per Jamabandi for the year 1988-89 comprised in Khewat No.106,Khatoni No. 229 and as per mutation No.791 dated 04.05.1994. The land is situated in revenue estate of village Mehrana, Tehsil Charkhi Dadri, District Bhiwani. In latest Jamabandi for the year 2003-04, their land has been shown by Khewat No.139, Khatoni No.250 out of total land measuring 36 Kanal 09 Marlas in which both defendants were depicted to be owners in 1/6th share each. It is further alleged that Jainarain was real brother of father of plaintiffs, namely, Bhagwan Singh. Nirmala is married to defendant No.3, Phul Singh, who holds general power of attorney on behalf of defendants No.1 and 2 since 1991, which is a registered document. Through said power of attorney, defendants entered into an agreement dated 12.09.1991 with plaintiffs for sale of their agricultural land measuring 12Kanals 03 Marlas for sale consideration of Rs.1,38,000/-. A sum of Rs.68,000/- was paid as earnest money by plaintiff No.1, Nirmala Devi on 12.09.1991 and agreement was executed to this effect. It was agreed between parties to the contract to execute sale deed within six months and remaining sale consideration of Rs.70,000/- was to be paid at the time of registration of sale deed. It was further stipulated in the agreement that if defendants fail to execute the sale deed, they will pay double the amount of earnest money to plaintiff No.1 and in case plaintiffs refused to get the sale deed registered, the earnest money was to be forfeited. After one month of execution of agreement, plaintiff No.1 paid another sum of Rs.58,000/- to defendant No.3 and as such, Rs.12,000/- remained to be paid. Plaintiff no.1 requested defendants to execute the sale deed but defendants delayed the same on one pretext or the other.

3.1. It is further alleged that defendants started demanding more money on the ground that price of land has increased. Parties again reached a settlement in the year-1994 whereby plaintiffs agreed to pay further sum of Rs.20,000/- to the defendants in addition to Rs.1,26,000/- already paid and thereafter, sale deed would be executed. A writing to this effect was also executed on 26.07.1994 by defendant No.3 on behalf of defendants No.1 and 2. The possession of suit property was also handed over to plaintiffs.

3.2. Plaintiff No.2 Deepak Kumar had borrowed a sum of Rs.24,000/- from one Balwan and Hazari for paying Rs.20,000/- to defendants on 26.07.1994. In this manner, agreement dated 12.09.1991 was merged in subsequent writing dated 26.07.1994. Since parties were close relatives, so plaintiffs were not much worried about execution of the sale deed as they