GIRDHARI LAL Vs. MITTAR SAIN

JUDGEMENT

(1.) This is the appellant-plaintiff's second appeal against the judgment of reversal.

(2.) The appellant-plaintiff (hereinafter referred to as 'the plaintiff') filed a suit for specific performance of the agreement to sell, and, in the alternative, for the relief of recovery, on the pleadings that the respondent-defendant (hereinafter referred to 'the defendant) was owner of 1/5th share out of the 179/256 share (8 kanals 19 marlas), out of the land measuring 12 kanal 16 marla, as detailed and described in the head-note of the plaint, and as shown in the Jamabandi for the year 1998-99. The respondent-defendant was, therefore, owner of 1 kanal 16 marla share out of the said land, on the basis of sale deed No.2270 dtd. 8/8/1995. The defendant sold 01 kanal 0 marla of land, vide sale deed No.959 dtd. 7/5/2004, to the plaintiff. He also sold 0 kanal 5½ marla of land vide another sale deed No.1193 to Smt. Sheela Devi. Therefore, the defendant was left with only 0 kanal 10½ marla share in the suit property. It has further been pleaded by the plaintiff that he and defendant had jointly purchased 179/256 share out of the land measuring 12 kanal 16 marla vide sale deed No.2270 dtd. 8/8/1995, and out of the said land they carved out plots. Some of the land was wasted in the streets, and after deducting the said land, plaintiff was allotted 1 kanal 16 marla land. Out of the said land, after execution of all the aforesaid sale deeds, the plaintiff was left with 0 kanal 10½ marla of land. It has been averred that by writing dtd. 7/5/2004, defendant sold 350 sq. yards plot, located at the back side of Amarjit Dhillon's land, to the plaintiff for a sum of Rs.1,22,500.00, and received the entire sale consideration in the presence of the witnesses. The defendant himself scribed the writing and signed it, admitting that he has no concern with the said land any longer. He also agreed to execute the sale deed in favour of the plaintiff, for which he (plaintiff) was always ready and willing. On 17/4/2008, the plaintiff's counsel sent notice to the defendant to get the sale deed executed, but he refused to accept the notice. With these pleadings, the suit was filed.

(3.) Upon notice, the defendant appeared and stated that the alleged writing/agreement dtd. 7/5/2004 was illegal and void as the area, boundaries, khasra numbers and khata numbers have not been mentioned therein. The alleged agreement to sell is on a plain paper, un-stamped, and is, therefore, inadmissible in evidence. On merits, execution of the writing/agreement dtd. 7/5/2004 was denied, and also receipt of the sale consideration amount.