2007 PLP 2656 (YLR)

MAULVI ANWARUL HAQ, J.

On 21-1-1989, the appellants filed a suit against the respondents. In the plaint it was stated that respondents Nos.1 to 3 were owners of the suit-land described in the plaint. Respondent No.1 himself and on behalf of respondents Nos.2 and 3 agreed. to sell the land to the appellants for a consideration of Rs. 1,25,

000. He received a sum of Rs.27,000 from the petitioners as earnest and executed agreement dated 10-11-1988. He assured that all the said respondents would execute a sale-deed and' get it registered on payment of balance amount of Rs.98,

000. However, they refused to turn up for doing the needful. It was then stated that respondent No.1 has declared that he had sold the suit-land to respondents Nos.4 to 7 by means of registered sale-deed dated 8-1-1989: It was stated that respondents Nos.4 to 7 were aware of the said agreement. With this averment a decree for specific performance of the _said agreement was sought. Respondent No.1 was proceeded against ex pane. Respondents Nos.2 and 3 stated that they had never authorized respondent No.1 to enter into agreement on their behalf. Respondents Nos.4 to 7 have taken the plea that in the first instance respondent No.1 agreed to sell 26 Kanals and 15 Marlas of land to them for a consideration of Rs.2,00,000, received earnest money of Rs. 1,22,000 and executed an agreement dated 8-8-1988. Thereafter he was paid the balance amount and he executed the sale ?deed and got it registered on 5-1-1989. The possession had also been delivered to them. According to them. their agreement was prior in time and they are lawful purchasers. Issues were framed. Evidence of parties was recorded. The learned Trial Court found that respondent No.1 had no authority to sell the land of respondents Nos.2 and 3, but he himself had executed A the agreement Exh.P.1 and received the said amount of earnest. It is also found that respondent No.1 had executed agreement dated 8-1-1988 in favour of respondents Nos.4 and 7, which is Exh.D.1 and that they are lawful purchasers. It accordingly granted a decree for return of Rs.27,000 with additional amount of Rs.27,000 by way of damages as prayed for by the petitioners in alternate. This was done vide judgment and decree dated 19-1-1993. First appeal filed by the appellants was dismissed by the learned ,District Judge, Hafizabad vide judgment and decree dated 21-1-1996.

2. The learned counsel for appellants contends that since the agreement to the extent of respondent No.1 had been proved a decree for whatever land was available with him should have been passed. The learned counsel for respondents, on the other hand, has contended that the land had already been sold to his client by respondent No.1 by means of a prior agreement, which is proved by cogent evidence. His further contention is that the petitioners have themselves prayed for an alternate relief and a decree for payment of earnest money and damages has been passed against respondent No.1 by the Courts below. I have gone through the copies of records with the assistance of learned counsel for parties. The evidence has been examined. To my mind the finding of the learned Courts below that respondent No.1 had agreed to sell the suit-land to respondents Nos.4 to 7 prior in time vide Exh.D.1 is sufficiently supported by the records. The tenor of plaint also shows that the petitioners were aware that respondent No.1 had earlier entered into an agreement but he made them believe that he would get sale-deed of entire suit-land registered .in their favour by concealing the earlier agreement with .respondents Nos.4 to

7. Sufficient relief has been granted to the petitioners by the learned Courts below. I may note here that it is stated by the learned counsel for. respondents ,Nos.4 to 7 and not contraverted by the learned counsel for appellants that the sale in their favour was made subject-matter of a pre-emption suit filed by the appellants and that suit. stood decreed in their favour and now the land has been transferred to them. The R.S.A. is accordingly, dismissed without any order as to costs. H.B.T./M-340/L????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.