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HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
MS. JUSTICE REKHA BORANA, J
SHRI HUKAMSINGH SHAKHLA – Appellant
Versus
PRABHUSINGH – Respondent
CMA / 382 / 2025
ORDER :
REKHA BORANA, J.
1. Learned counsel for the appellant submits that the learned Trial Court erroneously rejected the application under Order 39 Rule 1 & 2, CPC as filed on behalf of the plaintiff on the premise that the agreement to sell had not been executed by all the coparceners of the property in question and hence, no specific performance of the same could have been granted.
2. Learned counsel further submits that the learned Trial Court misinterpreted the ratio as laid by the Hon’ble Apex Court in the case of Pemmada Prabhakar & Ors. Vs. Youngmen’s Vysya Association & Ors.; (2015) 5 SCC 355 , to hold that no specific performance of the agreement to sell in question could have been granted.
3. Learned counsel submits that in Pemmada Prabhakar’s case (supra), the agreement had been executed for the complete land in question by two of the co-parceners without the consent of the other coparceners and hence, the Court held so.
4. In the present matter, it is only the share of the defendants which had been sold out and hence, the ratio of Pemmada Prabhakar’s case (supra) would not apply to the present matter.
5. Learned counsel further submits that now the defendants are proceeding on to get the nature of the land converted from agricultural to residential.
6. In view of the submissions made, Admit. Issue notice.
Issue notice of stay application also.
Notices be filed in two sets within a period of one week. On the same being filed, one set be given 'dasti' to learned counsel for the appellant for service through registered post acknowledgment due. Notices be made returnable on 15.04.2025.
Postal receipts of the 'dasti' notices be filed within a period of one week from the date of receipt of 'dasti' notices.
7. Meanwhile, the defendants shall be restrained from alienating/transferring the land/property in question or creating any third party right/interest in the same. The defendants shall also be restrained from taking any action/proceeding to get the nature of the land/property in question changed.
The court clarified that specific performance can be sought on agreements executed by a subset of coparceners, distinguishing it from prior cases based on the specific context of the agreement.
A suit for refund of consideration is not maintainable without a specific performance prayer, as per procedural requirements.
The court affirmed that agreements for the sale of shares in joint family properties can be specifically enforced, if properly documented, despite disputes over full title.
The main legal point established is that the Trial Court should consider the prima facie case of the plaintiff and the balance of convenience when deciding applications under Order 39 Rules 1 and 2 C....
The court upheld the decree for specific performance, emphasizing the validity of the agreement despite the defendant's denial and failure to provide evidence.
Stay of proceeding in Execution Case – Appeal is considered to be continuation of suit and subject matter of dispute must be kept safe till attaining finality ofissue by way of judgment.
The agreement's terms regarding land measurement do not render it void; the appeal is admissible as per Section 96 CPC.
The court established that specific performance can be enforced despite the necessity for a partition of jointly held property shares.
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