RAGHUKUL NARAIN MEHTA Vs. PRADUMAN KUMAR

JUDGEMENT

(1.) This second appeal under Section 100 of Code of Civil Procedure arises out of a decree for specific performance of contract passed by the lower Appellate Court dated 25.08.1982, whereby the judgment and decree of the Trial Court has been reversed. Facts in brief giving rise to filing of the appeal are that plaintiff-respondents filed Original Suit No.4 of 1970 with the allegation that the defendant had executed an agreement to sale in his favour on 23.09.1969 for sale of a shop along with staircase and a godown, bearing municipal no.6, Anaaj Mandi, Meerut, for a consideration of Rs.18,000/- and a sum of Rs.2,500/- was paid as advance. It was provided in the agreement that the sale deed would be got executed by 31.10.1966. Plaintiff alleged that despite execution of agreement to sale and readiness and willingness on his part the sale deed has not been executed. It was also stated in para 4 of the plaint that a notice was also served upon the defendant on 25.10.1969 to execute the sale deed on 27.10.1969, and thereafter subsequent intimations were also given, but the defendants failed to get the sale deed executed although the plaintiff remain present with the balance sale consideration before the Sub-Registrar on 27.10.1969, 29.10.1969 and 31.10.1969. Consequently prayer for specific performance of the contract was made by filing Suit.

(2.) A written statement was filed by the defendant-appellant in which it was stated that the shop is not exclusively owned by the defendant, rather it was owned by him along with his brother Sri Raghuraj Narain his nephews, niece, son and sister-in-law who also haver right/share in the property. Defendant also denied execution of the agreement and it was stated that his share in the shop is only 1/4th and in the absence of other family members having been impleaded to the suit, no relief of specific performance is liable to be granted.

(3.) Before the Trial court, oral and documentary evidence was led by the parties. On the basis of respective pleadings advanced before the Trial Court, issues were framed. Issue no.5 framed by the Court was to the following effect-"Whether the defendant alone is the owner of the shop in suit If so, its effect?"