Dharam Chand Chaudhary, Judge

This judgment shall dispose of the present appeal and also RSA No.340/2007 and 59/2009, involving common questions of law and facts for adjudication and pertaining to the same subject matter of dispute, i.e the land belonging to respondents in this appeal, defendants in the trial Court.

2. The subject matter of dispute in all the three appeals, are two Dharas (wooden structures) in existence over the land measuring 0-01-15 hectares, entered in Khata No.27/5, bearing Khasra No.2597/402, situate at village Sangla, Tehsil Sangla, District Kinnaur, Himachal Pradesh. Appellant in this appeal filed Civil Suit No.10-1 of 1997 against the respondents for specific performance of agreement dated 3.12.1995. The respondents in the present appeal are admittedly the owners of the suit land. A portion thereof was allegedly rented out by sole defendant Khem Raj (since dead) to appellant-plaintiff. He raised construction of two Dharas over that portion of the suit land rented out by said Shri Khem Raj to him. Later on, said Shri Khem Raj proposed to construct a pucca building over the suit land on demolition of one of the Dharas constructed by the appellant-plaintiff. As per mutual understanding, in the another Dhara the appellant-plaintiff had to run his business and as and when the construction of the RCC building is complete, to rent out two shops at monthly rent of Rs.7000/- per shop to the appellant-plaintiff in the said building. It was agreed upon that on the failure of said Shri Khem Raj, the deceased defendant, to rent out two shops, the appellant-plaintiff entitled to claim damages at the rate of Rs.5000/- per month from him from the date of refusal to induct him as tenant in two shops. An agreement Ext.PW1/A to this effect came to be executed between the parties on 3.12.1995. The deceased defendant allegedly refused to induct the appellant-plaintiff as tenant in two shops in the newly constructed building on the completion of construction work, hence suit for the decree of specific performance of the agreement and in the alternative for recovery of damages at the rate of Rs.5000/- per month w.e.f. January, 1997 onwards, firstly for a period of five years and thereafter till possession of two shops in the newly constructed building is handed over to the appellant-plaintiff.

3. Deceased defendant contested the suit and denied the execution of agreement Ext.PW1/A on the grounds that the same is result of fraud, coercion and undue influence and without his consent. Also that the suit land is joint property with his brothers S/Shri Vidya Singh and Sanjay Kumar and as they were not impleaded as party in the suit, hence the suit was said to be bad for non-joinder of necessary parties. While admitting that the appellant-plaintiff was inducted as a tenant in two Dharas, it is submitted that the same were constructed by the defendant and his brothers and he was tenant of all of them. The tenancy was stated to be determined by issuing notice under Section 106 of the Transfer of Property Act to the appellant-plaintiff and a suit for his eviction was also filed. It is also pleaded in the written statement that the deceased defendant Khem Raj was not constructing RCC building over the suit land alone, but the same was being raised by all the co-sharers.

4. Learned trial Court framed the following issues in the suit:

1. Whether defendant No.1 is liable to specifically perform the terms of the agreement dated 3.12.1995 and whether defendant is liable to restore possession of two shops situated over Khasra No.2597/402 at village Sangla to the plaintiff on annual rent of Rs.7,000/- per shop for a period of five years, as alleged? OPP

2. Whether plaintiff is entitled in the alternative for penalty/damage at the rate of Rs.5,000/- per month, per shop w.e.f. January, 1997 onwards, as alleged? OPP.

3. Whether suit is not maintainable in the present form? OPD

4. Whether this suit is bad for non-joinder of necessary pa