Rajinder Nath Mittal, J.@mdashThis appeal has been filed by the plaintiff against the judgment and decree of the Subordinate Judge 1st Class, Sangrur, dated 7th of August, 1971 dismissing his suit for specific performance of the agreement to sell by defendant No. 1, dated 12th of January, 1966.
2. Briefly, the case of the plaintiff is that Nawab Mohd. Iftkhar Ali Khan, defendant No. 1 entered into an agreement dated 12th of January, 1966 with the plaintiff and agreed to sell land measuring 12/13 bighas situated at Malerkotla. He received Rs. 1,000/- as advance. It was further agreed that the sale deed was to be executed by defendant No. 1 before 1st of March, 1966 and in case he failed to do so, the plaintiff was entitled to get the same executed through the Court and to receive Rs. 5000/- as compensation. The plaintiff further states that he has been always ready and willing to perform his part of the agreement but the defendant committed breach of the agreement and sold some land in favour of defendant No. 2, who had full Knowledge about his agreement with defendant No. 1 and agreed to sell some land to defendant No. 3. Consequently, he prayed that a decree for specific performance be passed in his favour. In the alternative he claimed Rs. 5000/- as damages.
3. The suit was contested by defendants Nos. 1 and 2 who filed separate written statements. Defendant No. 1 inter alia pleaded that the agreement was void being indefinite and vague and that the plaintiff committed breach of the agreement. Defendant No. 2 pleaded that she had no knowledge of the alleged agreement between the plaintiff and defendant No. 1 and that the same was vague and indefinite as regards the identity of the land. She further stated that she was a bona fide purchaser for value of the land and consequently the suit was liable to be dismissed.
4. The learned trial Court held that the plaintiff was ready and willing to perform his part of the agreement and the defendant committed breach thereof, that defendant No. 2 had come to know about the factum of agreement between the plaintiff and defendant No. 1 and that the agreement to sell was vague and indefinite as regards identity of the land. Consequently it dismissed the suit for specific performance. However, it passed a decree for recovery of Rs. 1,000/- given as earnest money, in favour of the plaintiff. He has come up in appeal against the judgment and decree of the trial Court to this Court.
5. The only question that arises for determination is as to whether the agreement of sale dated 12th of January, 1966, is vague and indefinite as regards the identity of land. The Learned Counsel for the appellant has argued that the agreement is not vague and indefinite as was held by the Court. He submits that the parties knew the particulars of the land which was agreed to be sold in favour of the plaintiff. He also referred to the statement of Abdul Gafoor P.W. 5 and defendant No. 1 to show that the land was ascertained before the plaintiff and defendant No. 1 entered into an agreement for sale.
6. I have considered the argument of the Learned Counsel but not impressed by it. In order to determine the issue, it is necessary to set out the relevant portions of the agreement which are as follows:-
Received a sum of Rs. 1,000/-......on account or earnest money in respect of land measuring about 12 or 13 bighas having width of 30 karams and length of 160 karams out of that of the well known as ''CHAH IMLIWALA'' situate near the Tube well, Dhobi Ghat adjacent to the land cultivated by S. Bhagwan Singh Sahib, vendee, son of S. Kaku Singh Sahib...... The aforesaid land shall be sold to the Sardar Sahib at the rate of Rs. 1,900/- (Rs. one thousand nine hundred) per bigha.......
7. The agreement neither contains the exact area of land to be sold to the plaintiff nor the boundaries. It is true that it gives the length and breadth of the land but it does not pin point the place from which it was to be measured. Unlets the point from which it was to be measured was given, no demarcation can be made at the spot. Alongwith the plaint, the plaintiff produced a map in which measurements were made from South East corner of the lard belonging to defendant No. 1. That point, however, is not given in the agreement. Therefore, it cannot be held that the measurements were to be made from that point. Even if that point is admitted correct, it is still not clear in what directions 160 Karams and 30 Karams were to be measured. In the plan, disputed area is shown 160 Karams from East to West and 30 Karams from South to North from that point. It is not disputed that land of defendant No. 1 from South to North is also more than 160 Karams Thus, the plaintiff can be given 160 Karams from South to North and 30 Karams from East to West and also 160 Karams from East to West and 30 Karams from South to North. The description of the land in both the eventualities remain the same and tally with that given in the agreement. Consequently, it cannot be said that the agreement is not vague.
8. Faced with this situation, the Learned Counsel for the appellant, referred to the statements of the plaintiff, Abdul Gafoor P. W-5 and defendant No. 1 and urged that those should be taken into consideration for the purposes of determining the exact location It is well settled that under sections 91 and 92 of the Indian Evidence Act, no evidence other than the agreement can be taken into consideration for determining the exact location of the land. Consequently, their statements are not admissible for determining the land at the site. Even if they are taken into consideration I am of the view that land was not ascertained before the agreement as argued by Mr. Achhra Singh and that the exact location of the land to be sold cannot be determined. According to the plaintiff and Abdul Gafoor 160 Karams are to be measured from East to West and 30 Karams from South to North. According to defendant No. 1, 160 Karams are to be measured from South to North and 3 Karams from East to West. Consequently. I am of the opinion that the agreement to sell regarding the property to be sold is vague and indefinite.
9. Section 9 of the Specific Relief Act, 1963 provides that where any relief of specific performance is claimed in respect of a contract, the defendant may plead any ground which is available to him under the law relating to contracts. u/s 29 of the Indian Contract Act, 1872, the agreements which are vague and indefinite are void and, therefore, cannot be enforced under the Specific Relief Act, In the aforesaid view, I find support from
10. For the aforesaid reasons, I do not find any merit in the appeal and dismiss the same with no order as to costs.
