Dilbagh Singh vs Gurdial Singh

N.K. Agrawal, J.—A civil suit for specific performance was filed by plaintiff Dilbagh Singh against defendant Gurdial Singh alias Dial Singh on 9.3.1981 in the court of Sub Judge, Dasuya. The plaintiffs case was that the defendant Gurdial Singh had entered into an agreement on 10.1.1978 to sell land, measuring 18 Kanals 12 Marias, at the rate of Rs. 1,400/- per kanal. Sale-deed was required to be executed on or before 15.1.1979. A sum of Rs. 16,000/- was paid by the plaintiff to the defendant on the date on which the agreement to sell was executed. The plaintiff was put in possession of the suit land and he continued to be in possession till the filing of the suit. Time to execute the sale deed was extended by agreement dated 14.1.1979 upto 15.1.1980 as defendant could not get the revenue records corrected. The plaintiff paid a further sum of Rs. 7,000/- to the defendant. The defendant sought more time for correction in the revenue records and time for the execution of the saledeed was, therefore, further extended upto 31.1.1981 by agreement dated 26.1.1980. A sum of Rs. 800/- was more paid to the defendant. Thus, out of the sale consideration of Rs. 26,000/-, the plaintiff paid in all the Rs. 23,800/- to the defendant.

The plaintiff claimed in his plaint that he was always ready to get the said deed executed on payment of the balance sale amount of Rs. 2200/- to the defendant but the latter was not coming forward to execute a sale deed in terms of the agreement. It was also explained that some other land, in lieu of the suit land, came to be allotted to the defendant during consolidation proceedings by the Consolidation authorities and the plaintiff, therefore, wanted sale of that land to him by the defendant. In the alternative, the plaintiff wanted the return of Rs. 23,800/- with damages amounting to Rs. 2,200/-.

The defendant, in his written statement before the trial Court, denied both the factum and validity of the agreement. It was also denied that the plaintiff was put in possession of the suit land or that the defendant received any money from the plaintiff. The defendant also took the plea that there were other co-sharers in the land and the suit was, therefore, bad for non-joinder of necessary parties. The trial Court, on this plea, took the view that the plaintiff could not claim any relief against the other co-sharers but the suit was not bad for non-joinder of parties. The plaintiff examined himself in evidence and also Karam Singh (scribe of the agreements), besides the attesting witnesses, namely, Mehanga Singh, Darshan Singh and Malkeet Singh. The defendant, however, did not step into the witness-box. The plaintiffs evidence thus went un-rebutted on issues regarding the execution of agreement, it was noticed by the learned Sub Judge that, in the jamabandis for 1973-74 and 1978-79, the defendant was shown as a joint owner with other co-sharers in respect of the suit land and was not its exclusive owner. The learned Sub Judge also reached the finding that though the plaintiff was ready and willing to perform his part of the agreement but was not entitled to get the sale-deed executed by way of specific performance of the agreement inasmuch as the defendant was not the owner of the suit land.

The plaintiffs suit was decreed with costs on 12.3.1983 and the plaintiff was declared entitled to recover the amount of Rs. 23,800/- paid by him to the defendant and the sum of Rs. 2,200/- by way of damaged. Interest at the rate of 6 per cent, per annum was also allowed from the date of the filing of the suit.

The plaintiff went in appeal against the denial of the primary relief regarding specific performance of the agreement but did not succeed.

The learned counsel for the plaintiff-appellant has filed the present second appeal with the plea that the plaintiff was entitled to get the sale-deed executed inasmuch as the defendant had agreed to sell the suit land to the plaintiff. Since the agreement has been proved in the trial court, there were no reasons to decline the relief to the plaintiff for specific performance of the contract. In the alternative, the learned counsel for the plaintiff-appellant has argued that the defendant was under a legal obligation to execute the sale deed to the extent of his share in the suit land as a co-sharer. The defendant was bound in law to execute sale-deed in respect of his share in the land. Reliance has been placed on a decision of the Full Bench of this Court in Bhartu v. Ram Sarup 1981 P.L.J. 204, (Full Bench). The rights and liabilities of a co-sharer were examined in detail in that case and it was held that a co-owner had interest in the whole property and also in every parcel of it. Possession of joint property by one co-owner is, in the eye of law, possession of all, even if all but one are actually out of possession.

It may be seen that the plaintiff never raised the alternative plea that the defendant may be asked to executed a sale-deed to the extent of his share in the suit land as a co-sharer. It was open to the plaintiff to seek that relief. If that had been done, the matter would have been examined by the trial Court so as to ascertain the extent of the defendant''s share in the suit land and the sale consideration for the same. There is no mention in the agreement to sell as to how much share the defendant had in the suit land. In the absence of any finding regarding the exact share of the defendant in the suit land as a co-owner or about the sale consideration for the defendant''s share in the land, it would not be permissible to grant the plaintiff the alternative relief now sought. The relief, now demanded, needed evidence so as to determine the defendant''s share in the suit land and the amount of sale consideration in regard thereto. In the absence of any evidence on record, the alternative relief, as prayed for, cannot be allowed.

In the result, the appeal has no force as specific performance of the contract cannot be granted in favour of the plaintiff-appellant. The appeal is, therefore, dismissed with costs.