QADIR SHAH Vs. AMMA DAR

JUDGEMENT

(1.) THIS civil second appeal is directed against the judgment and decree dated November 19, 1968, of the District Judge, Anantnag, affirming the judgment and decree dated May 30, 1968, of the Sub Judge, Anantnag, dismissing the suit brought by the appellants for specific performance of the agreement dated Phagon 25, 2010 (Bikrami).

(2.) THE facts leading to this appeal are: On Phagon 25, 2010 (Bikrami) corresponding to March 7, 1954, (A.D.) Karim Dar, the father of respondent No. 1 and uncle of respondents Nos. 2 and 3, entered into an agreement with Qadir Shah appellant and Mohd Shah the father of appellants Nos. 2 and 3. By this agreement Karim Dar undertook to sell his land measuring 2 kanals and 13 marlas comprised in Khasra No. 468/37 and a standing walnut tree with its branches spreading over an area of 5 marlas out of khasra No. 45 with all the rights incidental thereto, situate in village Uttar Sunji Gund Tehsil Anantnag, in lieu of Rs. 1,000/ - in favour of Qadir Shah and Mohd Shah. Previous to this agreement the land was mortgaged by Karim Dar in favour of Qadir Shah and Mohd Shah under a mortgage deed dated Chet 23, 1998, (Bikrami) corresponding to April 5, -1942. By virtue of the aforesaid subsequent contract for sale Karim Dar agreed to execute within a period of ten years a duly registered sale deed in respect of the said land and the walnut tree in favour of Qadir Shah and Mohd Shah after securing permission in that behalf from the D. C., Anantnag. By this deed it was also agreed by Karim Dar that he would within the aforesaid period of ten years have the entry with regard to the mortgage in respect of the said land deleted from the revenue papers and get a mutation attested in favour of Qadir Shah and Mohd. Shah. As Karim Dar failed to abide by his commitments evidenced by the aforesaid agreement dated Phagon 25, 2010 corresponding to March 7, 1954, the appellants brought the aforesaid suit on August 23, 1966, in the court of Sub Judge Anantnag, for specific performance of the agreement. A prayer for a decree for permanent injunction restraining the defendants from interfering with the land and the walnut tree was also made by the plaintiffs appellants.

(3.) THE suit was resisted by the respondents mainly on the ground that as in 2010 (Bikrami) the alienation of land by way of sale or mortgage was prohibited, the agreement dated Phagon, 25, 2010, was ineffectual and unenforceable.