BALBIR SINGH Vs. SHAM SINGH AND ORS.

JUDGEMENT

(1.) Challenge in the present appeal is to the impugned judgment and decree passed by Courts below, whereby suit for specific performance of agreement to sell dated 06.07.1992 and 22.03.1993 executed by appellant -defendant No. 1 in favour of the plaintiff in respect of land measuring 25 kanal 18 marlas has been decreed and the appellant -defendant No. 1 has been called upon to register and execute the sale deed on receipt of balance sale consideration. Mr. Rakesh Chopra, learned counsel appearing on behalf of appellant -defendant No. 1 submits that execution of the agreement in question was not only denied but seriously disputed and in fact the plaintiff is real brother of the appellant -defendant No. 1, fraud had been played upon appellant -defendant No. 1 for entering into the agreement to sell for sale of land measuring 25 kanals 18 marlas. He further submits that application under Order 32 Rule 15 was filed before the trial Court which was dismissed and same was assailed under provision of Order 43 Rule 1 -A by filing the appeal under Sec. 96 of Code of Civil Procedure. The Lower Appellate Court has not given any findings on the said point and since the judgment of the trial Court has merged with Lower Appellate Court, the same very grounds have been taken in the present appeal.

(2.) He further submits that during the subsistence of the agreement to sell, sons of the plaintiff filed a suit against the appellant -defendant No. 1 claiming the right and interest in the property owned by the appellant -defendant No. 1, on the basis of the family settlement and the said suit was decreed vide judgment and decree dated 08.02.1993 Ex. P16 and Ex. P17. The appellant -defendant No. 1 challenged the aforementioned decree by filing a civil suit dated 17.07.1995. The same was decreed on 23.10.1998 in his favour and the said judgment and decree has attained finality.

(3.) During the pendency of the appeal before the Lower Appellate Court, an application under Order 41 Rule 27 of the Code of Civil Procedure was filed, whereby leave of the Lower Appellate Court was sought to place on record the aforementioned judgment and decree which according to him goes to the root of the matter and would have helped the Lower Appellate Court in adjudicating the controversy between the parties to lis. The said application however was also dismissed and the same was also assailed in the present appeal. In this regard another application was filed and same was dismissed vide order dated 06.10.2009. The same was assailed before Hon'ble Supreme Court in SLP (Civil) No. 2833 of 2010 and the aforementioned SLP was withdrawn with liberty to take all the urged available grounds before the High Court vide order dated 26.02.2010. The order dated 26.02.2010 be read thus: - -