Darya Singh vs Jita (deceased) through his L.Rs.anr.

J.V. Gupta, J.

This is defendant''s second appeal against whom the suit for specific performance of the contract has been decreed by both the Courts below.

Lilu, defendant (now deceased) agreed to sell his land measuring 10 kanals 13 marlas vide agreement dated July 6, 1980 to the plaintiff Jita who also died during the pendency of the suit. The said agreement was for a consideration or Rs. 20,000/ out of which Rs. 11,000/ were received by him from the plaintiff at the time of the agreement and the remaining amount was to be paid at the time of the registration of the sale deed which to be executed and registered on or before September 22, 1980. On September 22, 1980. Jita, plaintiff paid the balance consideration of Rs. 9,000/ to Lilu, defendant, and accordingly the agreement dated September 22. 1980 was executed between them according to which, the sale deed was to be executed and registered on or before January 22, 1981. On that day, the plaintiff went to the office of the SubRegistrar, but Lilu defendant did not turn up; hence he filed the present suit, on September 17, 1981. In the written statement filed by Lilu, defendant, it was pleaded that the land measuring 4 kanals had already been sold by the heirs of Hari Singh to the sons of Jita, plaintiff, which fact was known to him, but he got the said land included in the agreement in order to pressurise him. However, the factum of the execution of the agreement. in dispute, was accepted by him, but it was alleged that only Rs 5,000/ were paid as the earnest money. According to him. the sale was to be for Rs. 15,000/ in respect of the land measuring 6 kanals 13 marlas only. He also pleaded that the agreement was got executed by playing fraud. He denied that he received a sum of Rs. 11,000/ as the earnest money as alleged in the plaint. The subsequent vendees pleaded that the suit in the present form was not maintainable and that it was also barred by time. The trial Court found that Lilu defendant executed the agreement to sell regarding 10 kanals 13 marlas of land for Rs. 20,000/ and that no fraud was played on him at the time of the execution of the agreement. It was further held that the plaintiff was always ready and willing to per, form his part of the contract. Ultimately, the plaintiff''s suit was decreed for 6 kanals 13 marlas of land. As the entiresate, price had already been paid it was directed that defendants Nos. 2 to 5 will execute and register the sale deed regarding this land in favour of the plaintiffs within 3 months. Expenses of stamp and registration etc. were to borne by the plaintiffs. Dissatisfied with the same, both the parties filed two separate appeals. The learned Additional District Judge affirmed the findings of the trial Court on all the issues and, thus maintained the decree passed by the trial Court. Dissatisfied with the same, the subsequent vendee has filed this second appeal.

This appeal was admitted on the question as to whether the suit for specific performance is maintainable or not because earlier the plaintiff filed the suit for preemption and failed.

The learned counsel for the appellant contended that earlier, Jita, plaintiff, had filed the suit for possession by way of preemption challenging the sale deed dated September 9, 1981. In that suit, the plaint was rejected under section 2 of the Punjab Preemption Act, as the plaintiff had failed to deposit onefifth preemption money. A copy of the order in the said suit is, Exhibit. D. 6. Thus, argued the learned counsel, once the plaintiff accepted the validity of the sale deed dated September 9, 1981, the same could not be challenged in the present suit for specific performance of the contract. In support of the contention, the learned counsel relied upon Amar Chand v. Harji, AIR 1972 Punjab and Haryana 1.

After hearing the learned counsel for the parties, I do not find any merit in this contention.

In Amar Chand''s case (supra), the question referred for opinion to the Full Bench was, where a suit for preemption filed by a reversionar is dismissed, is his subsequent suit challenging the sale of the same property, under custom, for want of consideration and legal necessity, barred".

The said question was answered in the affirmative by the Full Bench. The ratio of the said case has no applicability to the facts of the present case. The said case before the Full Bench was under custom and thereunder if once the validity of the sale is accepted, then the same could not be challenged subsequently in any other suit. In the present case the plaintiff claimed the right of preemption with respect to the sale made on September 9. 1981, whereas the present suit was filed for specific performance or the agreement which was entered into prior to the said sale deed In the circumstances, the question of accepting the validity of the said sale does not arise. The plaintiff was very much within his rights to claim the suit land by specific performance of the agreement for which the entire sale consideration had already been paid to the vendor.

Consequently, this appeal fails and is dismissed, with no order as to costs.