KULDIP SINGH Vs. GIAN SINGH

JUDGEMENT

(1.) Appellant arrayed as defendant no.2 before the learned trial Court has filed this appeal being aggrieved of judgment and decree dated 10.12.2012, passed by the learned Civil Judge (Jr. Division), Yamuna Nagar at Jagadhri, as well as judgment and decree dated 30.03.2017, passed by the learned Additional District Judge, Yamuna Nagar at Jagadhri, whereby suit for specific performance of agreement to sell dated 04.11.1997 filed by the plaintiffs-respondents, has been decreed.

(2.) Brief facts necessary for the adjudication of the case are that a suit for specific performance of agreement to sell dated 04.11.1997 was filed by respondent-Gian Singh and others, who are arrayed as respondents no.1 to 5 in this appeal. Plaintiffs sought specific performance of agreement to sell dated 04.11.1997 executed by defendant no.1 in their favour in respect to the land as described in the plaint with delivery of symbolic possession and for a declaration that sale deed no. 1366 dated 14.11.2006 executed by defendant no.1 in favour of defendant no.2, his son, was illegal, null, void and ineffective qua the rights of the plaintiffs. It is stated that defendant no.1 entered in an agreement to sell dated 04.11.1997 with the plaintiffs, for sale of the land as described in the plaint, for a total sale consideration of Rs.37,500/-. Entire sale consideration was received by defendant no.1 in the presence of witnesses i.e., PW-1-Surjit Singh and PW-2-Anoop Kumar. It is pleaded that a specific recital was incorporated in the said agreement that there was litigation pending regarding the title of the suit property before a Court of competent jurisdiction. Therefore, as and when the matter is decided in favour of defendant no.1, a notice of one month would be served upon the plaintiffs in writing for getting the sale deed executed and registered in their favour, at their instance. Actual, physical possession of the suit land, it is stated was delivered to the plaintiffs as the entire sale consideration was paid on the same date. An affidavit, Ex.PW2/B, in respect to delivery of possession was executed by defendant no.1. It is further averred by the plaintiffs that the area i.e., the share of defendant no.1 was land measuring 2 Kanal 0 Marla i.e., 1/ 4th share of land measuring 8 Kanal 0 Marla fully detailed in the heading of the plaint. However, out of the said land, land measuring 0 Kanal 7 Marla was acquired by the State Govt., for a road and hence new Khasra Number was carved out as Khasra No.10//20/2 and thereafter, defendant no.1 became owner of land measuring 1 Kanal 18 Marla being 1/ 4th share of remaining land measuring 7 Kanal 13 Marla and in this way, the share of defendant no.1 was reduced by 0 Kanal 2 Marla.

(3.) The case regarding the suit property was decided in favour of defendant no.1 on 29.04.2005 and mutation of the suit property accordingly sanctioned in favour of defendant no.1. However, no notice was served upon the plaintiffs in terms of the agreement to sell dated 04.11.1997. It is pleaded that when the plaintiffs came to know from some sources regarding sanction of mutation of the said land in favour of defendant no.1, legal notice dated 12.10.2006 was served upon defendant no.1 asking him to come present before the Sub-Registrar, on or before 14.11.2006 for execution and registration of the sale deed in favour of the plaintiffs. Defendant no.1 was personally requested to come present on 14.11.2006, as well. It is claimed that the plaintiffs on 14.11.2006, were present before the Sub-Registrar, Radaur, along with necessary expenses for execution and registration of the sale deed, but, defendant no.1, though present in the premises of the office of Sub-Registrar, Radaur, refused to execute the sale deed in favour of the plaintiffs and have it registered. Being pushed to the wall, plaintiff no.1 got his presence marked by way of affidavit attested from Notary Public on 14.11.2006. It is pleaded that defendant no.1 in a stealthy manner executed a registered sale deed of the suit property in favour of defendant no.2 (present appellant) i.e., his real son to defeat the plaintiffs rights on 14.11.2006, itself. Plaintiffs were threatened to be dispossessed by the defendants. Hence the suit was filed.