JUDGMENT

Harkesh Manuja, J.

By way of present appeal challenge has been made to the judgment and decree dated 02.04.1990 passed by Learned First Appellate Court; whereby decree for possession by way of specific possession, based on an agreement to sell dated 29.11.1974 has been passed in favour of plaintiffs as well as defendants No.2 & 3 (parties shall be referred to plaintiff and defendants) while reversing the judgment and decree dated 01.08.1988 passed by the learned trial Court.

2. Briefly stating, facts of the case as pleaded in the original plaint are that defendant No.1- Hans Raj owned land measuring 82 Kanals 6 marlas situated in Village Kakrala Anayat, Tehsil Kurla, District Kurukshetra. Regarding the aforesaid land, an agreement to sell dated 29.11.1974 was executed between Hans Raj being vendor and Gurbachan Singh as well as Sardar Singh as vendees to the extent of 400/1646 & 1246/1646 share, respectively. As per plaint, the total sale consideration was Rs.43,000/-, out of which a sum of Rs.20,000/- was paid as earnest money, target date as per agreement was 25.12.1974 which was later extended up to 02.01.1977. It was also pleaded that the plaintiff along with the balance sale consideration visited the office of concerned Sub-Registrar on 02.01.1977 & 03.01.1977, however, defendant No.1 did not turn up and finally refused to execute the sale deed on 25.12.1979, thereby compelling the plaintiff to file suit for possession by way of specific performance, based on the aforesaid agreement dated 29.11.1974.

3. The said suit was contested by the vendor Hans Raj by filing his written statement dated 07.06.1980, denying the factum of execution of agreement in question as well as the payment of earnest money. It would be relevant to point out here that Sardar Singh neither made any claim for specific performance nor he was even impleaded as a party defendant in the original plaint though the suit pertained to the entire 82 Kanals 6 Marlas of land.

4. During pendency of the suit, based on a consent decree dated 08.05.1983, suffered by vendor Hans Raj in favour of present appellants who happen to be widow and son of Sardar Singh; an application under Order 1, Rule 10 CPC came to be filed for impleading them as defendants. The said prayer was allowed by this Court vide order dated 06.04.1983 passed in Civil Revision No.1416 of 2018, allowing them to be impleaded as defendants No.2 and 3 in the suit. Based thereupon, they filed their independent written statement denying the factum of agreement to sell dated 29.11.1974 and also claiming themselves to be owners by way of decree dated 08.05.1983.

5. Learned trial Court vide its judgment and decree dated 01.08.1988, dismissed the suit filed at the instance of Gurbachan Singh- plaintiff by holding that the execution of the agreement in question was not proved on record. In addition, though it was recorded that the decree dated 08.05.1983 suffered by Hans Raj in favour of present appellants/defendants No.2 and 3 was collusive in nature, however, the same was not ordered to be set aside, holding that the plaintiff had no locus to challenge its validity.

6. Aggrieved against the judgment and decree dated 01.08.1988; whereby the suit for specific performance filed at the instance of Gurbachan Singh was dismissed, his legal heirs filed first appeal. Vide judgment and decree dated 02.04.1990 the aforesaid appeal was allowed, thereby granting a decree for possession by way of specific performance in favour of respondents 1 to 7 herein, to an extent of 400/1646 share out of the suit land bes