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TMI Blog2008 (12) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,63,000/-to be paid by defendant No. 1 to the plaintiff along-with interest @ 18% per annum from 6.5.1991 till realization. The suit qua defendant Nos. 2 to 4 was dismissed vide judgment and decree dated 4.12.2003. 2. The learned First Appellate Court, on an appeal preferred by the plaintiff, partly decreed the suit against respondent No. 1 for specific performance of agreement to sell dated 6.5.1991 to the extent of share of defendant No. 1 in the suit land subject to adjustment of the amount already received by defendant No. 1 from the plaintiff as sale consideration of his share. It was also ordered that if the amount of earnest money exceeds the sale consideration amount of share belonging to defendant No. 1, then he (defendant No. 1) shall be liable to refund the said amount along-with interest @ 6% per annum from the date of agreement till the date of realization. Rest of the suit was dismissed. It is against the aforesaid decree of the learned First Appellate Court, defendant No. 1 has come up in this appeal. 3. The case of the plaintiff is that the defendant constitute a Joint Hindu Undivided Family and are joint owners of land measuring 21 kanals 19 marlas bearing Khas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the suit is not properly valued for the purposes of Court fee and jurisdiction. On merit, it was alleged that the property in dispute is not Joint Hindu Undivided Family Property and is rather self acquired property of all the defendants, but it was admitted that the building where the poultry farm is located is on rent with the plaintiff @ Rs. 1,500/- per month. It was denied that defendant Nos. 2 to 4 had ever given any power of attorney to defendant No. 1. It was also alleged that the plaintiff had failed to perform his part of the agreement as he was not having ready money for purchasing the stamp and for payment of registration charges. 5. Defendant Nos. 2 and 4 filed their separate written statement and raised preliminary objections that the suit is not maintainable in the present form; there is no privity of contract between the plaintiff and defendant Nos. 2 to 4 and the plaintiff is not entitled to specific performance of the agreement to sell. On merit, it was denied that the property is Joint Hindu Family Property. It was alleged that the property is self acquired. It was admitted that the building and poultry farm are in existence and are in possession of the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First Appellate Court that defendant No. 1 is owner to the extent of l/4th share and the other co-sharers are also owners to the extent of l/4th share each. Therefore, it was held that relief for specific performance against/qua defendant No. 1 can be granted. Thus, suit of the plaintiff was partly decreed against defendant/respondent No. 1 directing him to perform his part of contract to the extent of his share in the suit land subject to adjustment of amount already received by him from the plaintiff for sale consideration of his share. It was also held that if the amount of earnest money exceeds the sale, then respondent No. 1 shall be liable to refund the said amount along-with interest @ 6% per annum from the date of agreement i.e. 6.5.1991 till realization. Rest of the suit was however dismissed. 9. Mr. R.S. Longia, learned Counsel appearing on behalf of defendant No. 1/appellant herein has vehemently contended that as he (defendant No. 1) had only l/4th share in the suit property, therefore, specific performance of part of contract cannot be ordered as it would cause legal difficulty. 10. As against this learned Counsel appearing on behalf of the caveator/respondents subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic performance was filed and in the alternative, prayer was made for recovery of Rs. 2,000/- paid as earnest money and Rs. 5,000/- as damages. The suit was decreed. The trial court came to the conclusion that brother (Harjinder Singh) was liable to sell his share in the suit property and decreed the suit with respect to his share. The learned trial Court also awarded Rs. 5,000/- as damages and cost of Rs. 1,000/-. In the High Court learned Single judge maintained the decree for specific performance of contract in respect of the half share of brother (Harjinder Singh) and set aside the decree for damages of Rs. 5,000/- as well as for the costs of Rs. 1,000/-, 13. In the Letters Patent Appeal, the Division Bench allowed the appeal and dismissed the suit, however, passed a decree for Rs. 7,000/- in favour of the plaintiff (Kar-tar Singh) being the amount consisting of Rs. 2,000/- as earnest money and Rs. 5,000/- as damages. The matter was then taken to the Supreme Court by the plaintiff (Kartar Singh). The Supreme Court observed that it is not a case of the performance of a part of the contract but of the whole of the contract so far as the contracting party, namely the respondent-br ..... X X X X Extracts X X X X X X X X Extracts X X X X
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