1. The appellant filed a suit for specific performance of the Agreement to Sell and for possession in respect of property bearing No.135 Block H, Vir Nagar Colony, G.T.Road, Gur Mandi, Delhi measuring 250 square yards for a total consideration of Rs.1,50,000/-.

2. It is the case of the appellant that a written Agreement of Sale was executed on 03.08.1977, a copy of which was filed along with the plaint, but the original was alleged to be in the custody of respondent no.1.

.3. The respondent no.1 is stated to be a perpetual sub lessee of the property in question having acquired the said rights in pursuance to a deed dated 30.09.1967 by the Land and Housing Department, Delhi of the Delhi Administration in favour of respondent no.1 duly registered on 16.01.1968. In view of the Agreement to Sell, the respondent no.1 (original defendant) is stated to have applied for sale permission of the suit property to the Delhi Development Authority as in terms of the sub lease deed fifty per cent of the unearned increase was payable to the said authority on transfer of the property. In pursuance to the request of respondent no.1, the permission was accorded by the DDA vide letter dated 05.10.1977. The defendant is also stated to have applied to the Income Tax Department on 18.01.1979 for grant of a certificate under Section 230A(1) of the Income Tax Act, 1961 (the said Act for short) which was also issued and filed along with the plaint.

4. The appellant claims to have deposited a sum of Rs.30,000/- with the DDA towards fifty per cent of the unearned increase in the value of the plot. A further sum of Rs.13,304.48 was paid by the appellant to the Loan Department of the Delhi Administration on account of the fact that a loan had been raised by the respondent no.1 for a sum of Rs.12,500/- for construction on the plot. The original documents were stated to be in the custody of the appellant. The appellant thus claims to have paid a sum of Rs.43,304.48 to the respondent no.1 out of a total sale price of Rs.1,50,000/- since the burden of unearned increase was to fall on the respondent no.1.

5. The grievance of the appellant is that the intention of the respondent no.1 became dishonest and he did not come forth to execute the sale deed despite a legal notice dated 29.11.1979. The suit was consequently filed.

6. Respondent no.1 was originally the sole defendant in the suit. In the written statement, an objection was taken by the respondent no.1 that he was not the sole owner of the entire property and did not have the authority to sell the entire house. The factum of the perpetual sub lease deed being in favour of the respondent no.1 was, however, not denied. The respondent no.1 claimed that he was the owner of only 1/3rd share and his two brothers owned the remaining 1/3rd share each. These two brothers were subsequently impleaded as the defendants in the suit being respondent nos. 2 and 3 herein.

7. The story set up by the respondent no.1 is that his father was a member of the Jain Cooperative House Building Society Limited though the share was obtained in the name of the said respondent no.1 being the eldest son. The plot was also consequently registered in his name. A loan was taken by respondent no.1 from the DDA and amounts were contributed by the other two brothers as well. The property is stated to be assessed in the name of the three brothers in 1/3rd share each in the income tax returns. Respondent no.1 claims that the appellant was in the full know of the facts as her husband and son had approached the respondent no.1 for negotiating the sale of the property. The sale of the property was to be concluded only if the other two brothers agreed to sell their shares and thus no written agreement was ever executed. Respondent no.1 did admit to applying for permission to sell the property to the DDA but since leasehold rights were in the name of respondent no.1, the application was so made. The amount deposited by the