Sher Singh and Others vs Gurdial Singh and Others

V.K. Jhanjl, J.—This is plaintiff''s first appeal directed against the judgment and decree of the trial court whereby suit of the plaintiffs for specific performance was dismissed.

Gurdial Singh (respondent No.1 herein) was the owner of the property in dispute. He entered into an agreement with the plaintiffs to sell the property in dispute for Rs. 23,400/- vide agreement dated 1.8.1974. The sale deed was to be executed on or before 15.6.1975. Before the sale deed could be executed in favour of the plaintiffs, Gurdial Singh sold the land in dispute in favour of respondents No.2 to 5. On coming to know that the land had been sold in favour of respondents No.2 to 5 Chanan Singh and Mukhtiar Singh (respondents No.6 and 7 herein) filed suit for specific performance of the contract alleging therein that Gurdial Singh had entered into an agreement with them and Sher Singh and Bachittar Singh (appellants herein). Gurdial Singh in his written statement admitted the claim of the plaintiffs and stated that the suit may be decreed. Respondents No.2 to 5 in their written statement took up the plea that the land in dispute was under mortgage of the plaintiffs which was redeemed on payment of the mortgage money. It was further claimed that the mortgages delivered possession in favour of the plaintiffs and the sales of the land were made with the knowledge of the plaintiffs. Agreement in favour of the plaintiffs was denied. They also asserted that they are bona fide purchasers for a consideration of the land in dispute. Originally suit was fled only by Chanan Singh and Mukhtiar Singh but later on Sher Singh and Bachittar Singh who were made defendants in the suit, also transposed themselves as plaintiffs. In evidence, it was proved on record that a sum of Rs. 17,000/- was paid to Chanan Singh and Mukhtiar Singh plaintiffs besides Rs-. 4,400/- as earnest money which the plaintiffs had paid to Gurdial Singh at the time of execution of the agreement. They also proved that they were put into possession by the said plaintiffs after the receipt of the said amount. To prove this, receipts Exhibits. D 1 and D2 were brought on the record. Plaintiffs though denied the execution of these documents but respondents No.2 to 5 successfully proved the said documents by producing convincing evidence. The trial Court thus dismissed the suit of the plaintiffs, Two of the plaintiffs, who were later on transposed have challenged the judgment and decree of the trial Court in this appeal.

Learned Counsel for the appellants has not challenged the finding with regard to execution of documents, Exhibits Dl and D2. He only contended that since Gurdial Singh has admitted the claim of the plaintiffs and thus the suit of the plaintiffs qua Gurdial Singh ought to have been decreed.

I have gone through the record with the help of Learned Counsel for the appellants. From the record I find that suit was filed by Chanan Singh and Mukhtiar Singh on the basis of the agreement to sell executed in their favour by Gurdial Singh. They also sought relief against the subsequent vendees, namely, respondents No. 2 to 5 but during the course of proceedings in ''he trial Court they entered into a compromise with respondents No.2 to 5. As per the terms they not only received the amount of mortgage but also received earnest money which they had paid to Gurdial Singh. A sum o- Rs. 1,500/- was also received by them as compensation, In this view of the matter trial Court was justified in not granting equitable relief of specific performance of the contract in favour of the plaintiffs. However I find no merit in the contention of Learned Counsel for the appellants that since Gurdial Singh admitted the claim of the plaintiffs, he is liable to pay damage as well as amount of earnest money which he had received at the time of execution of the agreement. It is true that though in the agreement, Exhibit P1 it is mentioned that in the event of non-performance of the contract plaintiffs shall be entitled to receive Rs. 4,400/- besides Rs. 2,2000/- as damages but in the suit, no such claim was made by the plaintiffs. In the suit, only relief claimed was possession of the suit land by way of specific performance of the contract. Apart from this relief plaintiffs in the alternative never claimed return of earnest money or damages. In this view of the matter, no relief can be given to the plaintiffs even against Gurdial Singh.

A a result thereof, this appeal is dismissed with no order as to costs.