SUSHIL JAIN Vs. MEHARBAN SINGH

JUDGEMENT

(1.) This suit for specific performance has been filed with respect to property being Plot No. QP-57, Maurya Enclave, Pitampura, Delhi-34 measuring approximately 150 sq.yds. The plot is built upon and it has a two and a half storey structure on the same.

(2.) The plaintiff admits that the suit property belongs to the two brothers-defendants no. 1 and 2. It is pleaded that the defendant no.1 entered into a receipt-cum-agreement with the plaintiff on 21.11.1995 (Ex.P1/Ex.PW1/1) whereby the defendant no.1 was said to have agreed to sell not only his half portion, but also the half portion belonging to the defendant no.2. It is the case of the plaintiff that the defendant no.1 agreed to get the consent of defendant no.2 to sell his other half portion to the plaintiff. Total sale consideration was fixed at Rs. 29 lacs and of which the plaintiff paid the defendant no.1 a sum of Rs. 1,00,000/- on 21.11.1995. The plaintiff is said to have made a further payment of Rs. 2,50,000/- on 26.11.1995 when another receipt-cum-agreement (Ex.P2/Ex.PW1/2) was signed, again only between plaintiff and defendant no.1. The plaintiff thereafter states that the parties entered into another agreement dated 31.1.1996 (Ex.P3/Ex.PW1/3) and in which time for payment was extended to 9.2.1996 and the defendant no. 1 once again undertook to get the defendant no.2 to agree for executing the sale documents qua his half share in favour of the plaintiff. The plaintiff has pleaded that the defendants committed breach of contract and refused to sell the suit property. Plaintiff also alleges breach of contract on the part of the defendant no.1 in not getting the permission from the defendant no.2 to sell the half portion belonging to the defendant no.2 to the plaintiff. The plaint thereafter makes reference to a legal notice dated 29.01.1996 calling upon the defendants to obtain sale permission, Income Tax Returns, NOC, etc from the competent authority. The plaint also makes reference to a suit filed by the defendant no.2 against the plaintiff whereby the defendant no.2 had prayed that he should not be forced to sell his half portion to the plaintiff inasmuch as there is no agreement with the plaintiff. I need not dwell much on this aspect inasmuch as admittedly there is no agreement to sell entered into by the defendant no.2 with the plaintiff. The above referred suit filed by the defendant no.2 is admitted by the parties to be adjourned sine die awaiting the decision of the present suit. The subject suit for specific performance came to be filed as the plaintiff pleaded that the defendants have refused to perform their part of performance of selling the suit property to the plaintiff.

(3.) Written statements have been filed by defendant no.1 and also defendants no. 2 and 3 i.e. one is the written statement of defendant no.1 and second is the written statement of defendants no. 2 and 3 jointly. Defendant no.3 who is the father of defendant no.2 was neither a necessary nor a proper party. He has expired during the pendency of the suit and he is now represented by the defendants no. 1 and 2 who are the sons.