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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.