MOHINDER NATH SHARMA Vs. RAM KUMAR

JUDGEMENT

(1.) The challenge by means of this Regular First Appeal (RFA) filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the Trial Court dated 25.1.2003. By the impugned judgment, the Trial Court decided two suits. Suit No. 209/2002 (originally Suit No. 728/1982) titled as Ram Kumar & Ors. vs. Mohinder Nath Sharma, was a suit for possession, declaration and recovery of damages of Rs. 62,000/- filed by the proposed sellers (the respondents herein) against the proposed buyer (now represented by his legal heirs-the appellants). The second suit was suit No. 210/2002 (originally Suit No. 817/1982) titled as Mohinder Nath Sharma vs. Ram Kumar & Ors. seeking specific performance of an Agreement to Sell and possession of balance land, filed by the proposed buyer against the proposed sellers. The impugned judgment dismisses the suit of the proposed buyer, Sh. Mohinder Nath Sharma for specific performance and decrees the suit filed by the proposed sellers for possession and damages. For the sake of convenience in this judgment, I will refer to the proposed sellers as the respondents and the proposed buyer as the appellant. The original proposed buyer, Sh. Mohinder Nath Sharma has expired, and he is now represented by his legal heirs as the appellants. The disputes in the present case pertain to an agreement to sell dated 1.6.1979. The agreement to sell was entered into between the proposed sellers, Sh. Ram Kumar, Sh. Jai Prakash and Sh. Parmanand with the proposed buyer Sh. Mohinder Nath Sharma. The subject matter of the agreement to sell was a piece of land situated on property no.894 & 894/1, Alipur, Delhi-36 admeasuring 2,000 sq. yds. and having a boundary wall on three sides alongwith certain constructions on the same. The price which was agreed under the agreement to sell was Rs. 1,60,000/-. The agreement recites the receiving of Rs. 1,00,000/- by the respondents. There is also a separate receipt executed of the same date of agreement to sell showing the receipt of a sum of Rs. 1,00,000/- by the respondents.

(2.) The agreement to sell though apparently appeared to be clear with respect to the buyer, the sellers, the area of the land to be sold and the price at which it was sold, however, actually there was uncertainty qua the area and consequently the price, and which aspect emerges from para 3 of the agreement to sell which reads as under:-

(3.) In order to appreciate para 3 of the agreement to sell, it is necessary to understand the ownership of the respondents with respect to the suit land. The respondents were undisputed owners/title-holders of a total of 1300 sq. yds. of land, and which area of 1300 sq. yds. of land was purchased by means of two sale deeds dated 22.6.1973, each sale deed being for 650 sq. yds.. The sale deeds were in favour of Sh. Ram Kumar/plaintiff no. 1 (in the suit of the proposed sellers)/respondent no.1 herein, and Sh. Jai Prakash-plaintiff no. 2 (in the suit of the proposed sellers), the respondent No. 2 herein. Besides the area of 1300 sq. yds., there were also claimed rights by the respondents in a plot of 1000 sq. yds. under a general power of attorney dated 25.6.1973 executed in favour of the aforesaid plaintiffs no. 1 and 2/respondents no.1 and 2. Therefore, there was with the respondents a total area of 2300 sq. yds., of which, there was no doubt with respect to title/ownership of 1300 sq. yds., however, so far as the area of 1000 sq. yds. was concerned, there was no title by a regular sale deed, but, only a general power of attorney.