VED PARKASH Vs. MAHENDER AND OTHERS

JUDGEMENT

(1.) This is the second appeal filed by the defendant No.1 in the suit challenging the concurrent judgment and decree passed by the Courts below, whereby, the suit for specific performance filed by the plaintiff has been decreed.

(2.) For the reference, the parties in the present appeal would be referred to as plaintiff and defendants; as they were described in the original suit.

(3.) The brief facts of the case as mentioned in the suit are that the plaintiff filed a suit claiming that defendant-Sh. Singhram, now represented through legal representatives, entered into an agreement to sell dated 17.11.1990 to the effect that he was the owner in possession of land measuring 1200 sq. yards comprised in Khasra No. 758 situated within the revenue estate of Village Nathupur Tehsil and District Gurgaon. It was further claimed by him that land is free from all sorts of encumbrances. Believing the representation made by the vendor/defendant, the plaintiff agreed to purchase the said property. The price of the land was settled at rate of Rs. 150/- per sq. yard and a total consideration for the sale was Rs. 1,80,000/-. Out of that Rs. 1,25,000/- was paid by the plaintiff to the vendor/defendant. Possession of the land was handed over to the plaintiff. It is further pleaded that the target date for execution of the sale deed was agreed to be, a period of one month from the date of decision, of a civil suit which was pending regarding the title of the vendor/defendant over the land agreed to be sold. The date of decision of the suit was to be communicated by the defendants to the plaintiff. The suit was decided on 22.01.2003, however, the defendant did not communicate the date and did not show his readiness to execute the sale deed, therefore, the present suit was filed. It was further pleaded in the suit that the defendant, in the meantime, filed a suit for possession for seeking back possession of the suit property. However, the same was also dismissed. It was further claimed that although the title suit, filed by some other co-sharers against the defendant, was dismissed by judgment and decree dated 22.01.2003, however, in appeal learned District and Sessions Judge decreed that suit on 15.09.2003 and held the defendant to be the owner of the land measuring 600 sq.yards only. It was further claimed that as per the decision of the Civil Court, the defendants had got clear title of 1/4th share (600 Sq. yards) in khasra No. 758 which was agreed to be sold to the plaintiff, therefore, the suit was filed only for execution of the sale deed qua 600 sq. yards instead of agreed 1200 Sq. yards. Since, the amount had already been paid in excess, therefore, the plaintiff claimed specific performance of the agreement.