AI Structured Summary
Not yet generated for this judgment
Judgment
This Civil First Appeal under sec.96 CPC has been filed
against judgment & decree dated 05.07.1986 passed by Additional
District Judge, Sri Ganganagar in Civil Original Suit No.22/1983.
Briefly stated, a suit was filed by one Maghar Singh son of
Deedar Singh, whose legal heirs are present respondents No.1 to
5, against one Jagtar Singh whose legal heirs are respondents
No.6 to 8, and the appellant, for specific performance of an
Agreement for Sale. It was alleged in the plaint that on
05.04.1968 one Agreement was entered into between late Maghar
Singh and Jagtar Singh regarding 12.10 bighas land situated in
Chak 28-LMP I-B for an amount of Rs.7000/-. It was further
alleged that the plaintiffs were in possession of the land for 15-16
years but now he has entered into possession in part performance
of said Agreement.
It was also alleged that after completing all the requisite
formalities for obtaining Sanad and after obtaining Rs.3000/-, a
Sale Deed was to be executed but for one or other reason, the
sale deed was not executed and prices of land increased. It has
also been alleged that late Jagtar Singh demanded some more
money, therefore, on 31.03.1971 a second Agreement was
executed for sale of the same land, for an amount of Rs.10,000/-.
It was also mentioned in para 4 of the plaint that Rs.4000/- were
already paid and Rs.4000/- were paid on 31.03.1971, in total
Rs.8000/- were paid. It would be relevant to submit that this fact
of Rs.4000/- having been paid previously and Rs.4000/- paid on
31.03.1971 was missing in the second Agreement Ex.2.
It was further alleged in para 7 of the plaint that Jagtar
Singh executed a Sale Deed for an amount of Rs.18,000/- in
respect of same land in favour of defendants No.2 to 6 in the suit,
who are now appellants. It was alleged in para 11 of the plaint
that the suit was within limitation from the date of second
Agreement dated 31.03.1971.
A written statement was filed by the defendant-appellants
wherein it was stated that the land stood transferred to them by
way of registered Sale Deed dated 19.01.1971 and said
Agreement dated 31.03.1971 can not be executed after transfer of
the land in favour of appellants and hence, the suit should not be
decreed against the appellants. The appellants also denied
execution of both the Sale Deeds. They also alleged sale of other
land to Maghar Singh but he showed his inability, so they
purchased this land and took possession and are in possession of
the land in dispute.
It was also submitted by them that they did not have any
knowledge regarding alleged agreement dated 05.04.1968, they
had no notice or knowledge of alleged agreement and they are
bona fide purchasers.
On the basis of pleadings of the parties, the trial court
framed issues and decreed the suit in favour of respondents No.1
to 5.
It was alleged that Gurmel Singh son of Sadhu Singh was
defendant in the suit, who expired in the month of August 1985
and this fact was in knowledge of respondents No.1 to 5 but his
legal heirs were not brought on record within the time prescribed
and hence, the suit stood abated and the decree is nullity. The
decree has been passed against a dead person and hence, it is
nullity in the eye of law.
Aggrieved of the aforesaid decree, the appellants have
preferred this appeal on the grounds that the trial court has failed
to correctly appreciate the evidence of Pws1, 2 & 5. It was
contended that the statement PW2 scribe of Ex.1 clearly says that
he was not knowing Jagtar Singh. This aspect of the evidence of
the scribe was not considered by the trial court. While deciding
issue No.2, the trial court again committed illegality in holding
that though there is no mention of previous agreement Ex.1 in
this Agreement, this mistake has crept in inadvertently. No such
explanation was available on record and nothing has been said
why previous agreement was not mentioned while executing
alleged new agreement Ex.2.
It was also contended that the trial court has committed
mistake in deciding issues No.3 & 8 in holding that the appellants
had a notice of agreement Ex.1 before Sale Deed dated
19.01.1971 was executed in their favour. It may be submitted that
after alleged execution of Ex.2 dated 31.03.1971, existence of
Ex.1 was of no importance. After execution of new agreement, no
benefit can be derived out of alleged previous agreement and no
relief can be provided on the basis of previous agreement. The
appellants had no notice whatsoever of agreement Ex.1 and
simply because they enquired from Maghar Singh does not
authorize the trial court to conclude that they had a notice of Ex.1.
It is admitted position that Maghar Singh was in possession of the
land prior to execution of the Sale Deed in favour of appellants.
It was also contended that this land was given on ''theka'' and
the trial court has given much importance to discrepancies in
statements of appellants regarding factum of possession. At the
same time, the trial court refused to give any importance to Ex.A-
1 dated 07.05.1973, statement of late Maghar Singh, wherein
there was clear admission regarding factum of possession in
favour of the appellants.
It was also contended that while deciding issue No.4, the
trial court gave finding regarding possession on the basis of
findings given on issues No.3 & 8. It may be submitted that only
because of fact of possession, sale deed can not be said to be
illegal in any manner.
It was further contended that findings of the trial court on
issue No.7 is also against the evidence available on record. It was
contended that the possession was not handed over on
19.01.1971 and on this ground also the sale deed dated
19.01.1971 was held to be not genuine by the trial court. The
execution of the sale deed was very well proved but the trial court
committed illegality in holding that the execution and passing of
consideration was not proved.
On the contentions raised by the appellants, perused the
pleadings and evidence placed on record.
Appellants No.1 to 4 (Tara Singh, Kartar Singh, Ishar Singh
and Jeet Singh) are sons of Sadhu Singh and the appellants No.5,
6 & 7 are widow & daughters of Gurmel Singh while appellants
No.8 & 9 are sons of Gurmel Singh son of Sadhu Singh. The
appellants have contended that Gurmel Singh son of Sadhu Singh
was defendant in the suit, who expired in the month of August
1985 and this fact was well within knowledge of the plaintiff-
respondents No.1 to 5 yet his legal heirs were not brought on
record in the suit within the prescribed time and therefore, the
suit had stood abated and the judgment & decree passed by the
trial court in the suit No.22/1983 on 05.07.1986 is nullity, as the
decree has been passed against a dead person.
To this fact, there is no denial on the part of respondents,
who appeared as caveator to the appeal. The legal heirs of Gurmel
Singh s/o Sadhu Singh have also preferred this appeal and
challenged the judgment & decree dated 05.07.1986 on merits
also. In the opinion of this Court when the decree is passed
against a dead person, it has no value in the eye of law and
therefore, there is no need to examine the judgment & decree so
passed by the trial court on merits. Hence, the appeal is allowed
and the judgment & decree dated 05.07.1986 in Civil Original Suit
No.22/ 1983 {Maghar Singh & ors v. Jagtar Singh & ors } passed by
learned Additional District Judge, Sri Ganganagar is set aside.