MAM CHAND Vs. AJAY KUMAR

JUDGEMENT

(1.) THIS Regular Second Appeal is directed at the instance of appellant -defendant No.1 against the judgment and decree dated 31.10.2009, whereby the suit for specific performance of the agreement to sell dated 12.01.2004 in respect of land measuring 6 Kanal 16 Marla had been decreed and the relief qua land measuring 24 Kanal which was alienated by defendant No.1 before filing of the suit had been declined and the aforementioned judgment and decree was assailed by the plaintiff and as well as by the respondent. However, the appeal/Cross objections of the plaintiff was partly allowed and the judgment and decree of the trial Court was modified and instead of 6 Kanal 16 Marla land measuring 14 Kanal 16 Marla was ordered to be sold to the respondent -plaintiff by specific performance of the aforementioned agreement to sell and the appellantdefendant was also directed to refund a sum of Rs. 82,000/ -. However, the appeal/cross objections filed by the appellant -defendant was dismissed. It is in these circumstances, the appellant -defendant has approached this Court and filed aforementioned Regular Second Appeal.

(2.) MR . Inderjit Sharma, learned counsel appearing on behalf of appellant -defendant No.1 contends that the respondent -plaintiff had not been diligent, much less, ready and willing in seeking the specific performance of agreement to sell inasmuch as that the target date for the agreement to sell was 12.07.2004, whereas the suit had been filed on 01.03.2007 and, therefore, the alternate relief should have been granted. He further submits that the Lower Appellate Court has wrongly reversed the finding of the trial Court by granting the relief in respect of land measuring 14 Kanal 16 Marla as the appellant -defendant No.1 had before filing of the suit suffered a consent decree and the land measuring 8 Kanal in favour defendant No.5 who is none else but the son of the appellant -defendant No.1 and this fact has not been noticed by the Lower Appellate Court. Therefore, there is illegality and perversity in the impugned judgment and decree.

(3.) MR . Ranjit Saini, learned counsel appearing on behalf of respondent -plaintiff submits that judgment and decree passed by the lower Appellate Court is in consonance with provision of Sections 20, 13 and 12 of the Specific Relief Act inasmuch as that respondent -plaintiff during the pendency of the case had forgone the right in respect of land measuring 24 Kanal which was allegedly sold by appellant -defendant No.1 to defendant No.2 to 4 and 6 and, therefore, the lower Appellate Court has rightly granted the specific performance in respect of land measuring 14 Kanal 16 Marla. He further submits that there is no illegality and perversity in the judgment and findings rendered, much less, no substantial question of law arises in the present appeal to be adjudicated by this Court.