Point of Law: It is beyond comprehension that having received notice Ext.P-1, defendant had not made any effort to reply or rebut its contents.

JUDGMENT :

(Satyen Vaidya, J.)

1. Appellants have preferred Regular Second Appeal under Section 100 of the Code of Civil Procedure against judgment and decree dated 21.12.2006 passed by learned District Judge, Una, H.P. in Civil Appeal No. 134 of 1999 whereby the judgment and decree dated 25.5.1999, passed by learned Senior Sub Judge, Una, H.P. in Civil Suit No. 163 of 1989, has been affirmed.

2. The suit for specific performance of agreement to sell land comprised in Khewat Khatauni No. 73/199 min, Khasra No 1515 measuring 234-08 sq. meters situated at Up Mohal Behali, Mohal Una, Tehsil and District Una (for short, ‘the suit land’), has been decreed in favour of the respondent/plaintiff.

3. Plaintiff claimed a decree of specific performance of agreement dated 12.9.1988 whereby the predecessor-in-interest of appellants (for short the defendant) Sh. Gurdas Ram had agreed to sell the suit land to the plaintiff for total sale consideration of Rs.72,500/-. As per plaintiff, he had paid Rs.20,000/- to defendant at the time of execution of agreement to sell and thereafter on two occasions i.e. on 8.11.1988 and 02.01.1989 additional sums of Rs.7,000/-and Rs.13,000/-, respectively were paid to defendant towards the sale consideration on his asking. It was also the case of plaintiff that further a sum of Rs.5,000/- was received by defendant from father-in-law of plaintiff (Sh. Ramji Dass). The sale deed was to be executed on or before 11.9.1989 and balance of the sale consideration was to be paid by plaintiff to the defendant at the time of execution and registration of sale deed. As per plaintiff, he got issued a notice dated 5.9.1989 through his counsel to defendant calling upon the defendant to execute the sale deed in terms of agreement dated 12.9.1988. Plaintiff had shown his readiness and willingness to purchase the suit land. Plaintiff also pleaded his readiness and willingness to perform his part of agreement dated 12.9.1988.

4. In defence, defendant denied having executed any agreement dated 12.9.1988 or any other further document in sequel thereto. He also denied having received any amount as advance or otherwise towards the sale consideration. Defendant raised a plea that his thumb impressions were obtained by the plaintiff by fraud, misrepresentation and taking benefit of illiteracy of defendant. As per the defendant, he was made to put his thumb impressions on few papers on the pretext that plaintiff would help in procuring bank loan for defendant. It was also submitted that plaintiff had failed to plead his readiness and willingness to perform his part of agreement and was thus dis-entitled from the relief claimed. Defendant further came up with a plea that the suit land was a joint holding of many persons and defendant had 1/4th share in it and hence he could not have either agreed or sold the entire suit land to plaintiff. He further stated that the suit land was already under a mortgage with bank at the time of execution of alleged agreement.

5. Learned trial Court framed the following issues:

1. Whether the suit is not maintainable? OPD

2. Whether the plaintiff has cause of action? OPP

3. Whether the defendant entered into agreement to sell the suit land to the plaintiff as alleged? OPP

4. Whether the plaintiff was and is ready and willing to perform his part of agreement? OPP

5. Whether the agreement is the result of fraud and misrepresentation as alleged? OPD

6. Whether the name of the grand-father of the defendant is given correctly? OPP

7. Whether the defendant is in exclusive hissadari possession of the suit land, if so to what effect? OPP

8. Whether the suit is valued properly for the purpose of court fee and jurisdiction? OPP

9. Relief.

All issues except issue No. 5 were answered in affirmative and the suit of the plaintiff was decreed. Plaintiff was directed to deposit the balance amount of Rs.32,500/- within one month from the date of judgment and in case of such deposit, the defendant was directed to execute the