9911796707
TMI Blog2008 (12) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, on payment of balance amount of Rs. 1,70,219/- and in the alternative, for recovery of Rs. 5,28,000/- with interest, with consequential relief of permanent injunction restraining the defendants from forcibly and illegally dispossessing him and from selling, mortgaging, leasing or alienating the property in dispute in any manner. The suit of the plaintiff was decreed by the trial Court against defendant No. 1 only for recovery of Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, executed a legal and valid registered lease deed dated 6.5.1991 in favour of the plaintiff @ Rs. 3,000/- per year and on the same day, the defendant No. 1 himself and defendant Nos. 2 to 4 executed an agreement to sell in favour of the plaintiff through their attorney-defendant No. 1 for the sale of aforesaid land and building @ Rs. 85,000/- per acre total amounting to Rs. 2,33,219/- along-with building plus appurtenances and fixtures for a sum of Rs. 2,00,000/- all totaling Rs. 4,33,219/-. The defendants had received a sum of Rs. 2,63,000/- at the time of execution of the agreement to sell and balance amount of Rs. 1,70,219/- was agreed to be paid at the time of execution of the sale deed. It was mutually agreed between the parties that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 plaintiff @ Rs. 1,500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was also held that the plaintiff remained ready and willing to perform his part of the agreement, but it was held that the agreement to sell is not binding upon defendant Nos. 2 to 4 as neither they gave any power of attorney to defendant No. 1 to sell nor they themselves agreed to sell the suit land in favour of the plaintiff. In these circumstances, the trial Court held that a decree for specific performance cannot be granted to the plaintiff as defendant Nos. 2 to 4 who are co-sharers in the suit property had never agreed to sell land to the plaintiff. Thus, a decree in the alternative was granted for recovery of Rs. 2,63,000/- to be paid by defendant No. 1 to the plaintiff with interest @ 18% per annum from 6.5.1991 till realization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief by the first Appellate Court in this regard. Learned Counsel for the respondent has relied upon a decision of the Supreme Court in the case of Kartar Singh v. Harjinder Singh and Ors. AIR1990SC854 . 11. I have heard both the parties and perused the record with their assistance. 12. From the perusal of the facts, it is quite clear that there is an agreement to sell and the plaintiff was also ready and willing to perform his part of the contract. It is also apparent that the plaintiff is already in possession of the disputed property as a tenant. Now the question is whether a decree for specific performance can be granted in respect of a small share in a joint property where the other share holders have refused on the ground that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... native, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
