The main legal point established in the judgment is the court's discretion in granting specific performance and the determination of rights in a suit for specific performance.

JUDGMENT :

SANJEEV KUMAR, J.

1. The instant first appeal by the appellant is directed against the judgment and decree dated 31.08.2021 passed by the Court of Additional District Judge, Budgam [“the trial Court”] in a suit for specific performance and injunction titled Mehboob Ali Khan vs. Ghulam Hyder Malla and Another.

2. Before proceeding ahead to deal with the grounds of challenge to the impugned judgment and decree as urged by the learned counsel appearing for the appellant, it would be appropriate to advert to few relevant facts.

3. Respondent No. 1 [plaintiff in the suit] filed a civil suit for specific performance of contract and permanent prohibitory injunction against the appellant and respondent No. 2. [“the defendant Nos. 1 and 2 in the suit”] in respect of land measuring 1 kanal 10 marlas under survey No. 620 and land measuring 14 marlas falling in survey No. 582 situated at village Dandoosa Tehsil and District Budgam [“the suit land”]. As is averred by the plaintiff in the suit, the suit land was offered for sale to the plaintiff by defendant No. 1 in the month of November, 2016 and an agreement to sell was executed between the plaintiff and defendant No. 1. On the asking of the defendant No. 1, the plaintiff paid the entire sale consideration of Rs. 34,95,000/- which included a sum of Rs. 9,45,000/- in respect of land measuring 14 marlas falling under survey No. 582. The plaintiff pleaded that after having paid the entire sale consideration, he approached the defendants to execute a proper sale deed and deliver possession of the suit land but the defendants refused and therefore, the cause of action to file the suit. The plaintiff has made reference to a criminal complaint filed against the defendants for having assaulted and threatening him of dire consequences in case he persists for execution of the sale deed or approaches the court of law for taking legal remedy. It is in this backdrop the plaintiff prayed for a decree of specific performance of contract and for delivery of the possession of the suit land.

4. On being put on notice, the defendants filed their written statement. The allegations made in the plaint were refuted and the execution of the document “agreement to sell” in respect of the suit land was flatly denied. The defendants, as is apparent from Para 6 of the written statement, did not specifically deny having received the amount through cheques but submitted that the said amount received through cheques from the plaintiff was not in relation to any transaction of sale of land as was claimed by the plaintiff. The defendants even went to the extent of suggesting that the plaintiff, if aggrieved, should file a suit for recovery of money and that the suit for specific performance of contract was not maintainable. It seems that later on, on the application of the plaintiff, Javid Ahmed, who was alleged to be the owner of 14 marlas of land under survey No. 582 in respect of which defendant No. 2 had also executed the agreement to sell, was arrayed as party defendant No. 3. In his written statement filed before the trial court, the defendant No. 3 denied having authorized defendants No. 1 and 2 to execute any agreement to sell in respect of land measuring 14 malras or to receive any sale consideration in respect thereof from the plaintiff. Subsequently, vide order dated 08.08.2018, defendant no. 3 (Javid Ahmed) came to be deleted from the array of defendants. Be that as it is, on the basis of the pleadings of the parties, the trial Court framed following issues:

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

2. Whether the plaintiff has not disclosed the cause of action and suit is liable to be dismissed on that count? OPD

3. Whether the plaintiff has not valued the suit properly. If so, what is its effect on the suit? OPD

4. Whether the defendant no. 1 has executed an agreement to sell on 11.11.2016 in favour of the plaintiff with respect to 1 kanal 10 marla of land comprising under survey n