IMPORTANT POINT
.

ANIL KSHETARPAL, J.

1. The arguments were heard in detail and the order was pronounced. Detailed reasons are being recorded.

2. Plaintiff-appellant is in regular second appeal against the judgment passed by the learned first appellate court reversing the judgment and decree passed by the learned trial court, in a suit for specific performance of the agreement to sell dated 30.03.1997 with respect to exercise of discretion under Section 20 of the Specific Relief Act, 1963.

3. Three brothers, namely, Dalip Singh Suri, Mohan Singh Suri and Jaswant Singh Suri were co-owners in equal share in the land measuring 17 bighas and 6 biswas. Dalip Singh Suri, defendant no.1, entered into an agreement to sell with the plaintiff for himself and on behalf of his two other brothers claiming to be authorized by a General Power of Attorney. As per written agreement to sell, out of total sale consideration of Rs.9,00,000/-, Dalip Singh Suri, defendant no.1, received a sum of Rs.1,50,000/- as earnest money. It was agreed that with regard to ½ share of the total land agreed to be sold, i.e. 8 bighas and 13 biswas, the sale deed would be executed on 15.07.1997 on payment of ½ of the remaining sale consideration, whereas sale deed for remaining ½ share shall be executed on 15.01.1998 on payment of balance sale consideration.

4. Since, the sale deeds were not executed, as agreed upon, therefore, the plaintiff filed a suit for specific performance of the agreement to sell on 13.04.1998. Plaintiff asserted that he was always ready and willing to perform his part of the contract. Plaintiff also asserted that he went to the office of Sub-Registrar along with draft of Rs.3,75,000/-, along with Rs.70,000/- as registration charges on 15.07.1997 but the defendants did not come forward. Plaintiff also asserts that the defendant Dalip Singh Suri sent him a telegram on 14.07.1997, for extending the date for execution of the sale deed to 05.08.1997. Plaintiff again visited the office of Sub- Registrar on 05.08.1997. He further asserts that once again he visited the office of Sub-Registrar on 15.07.1997 along with 3 drafts i.e. Rs.7,50,000/- i.e. the balance sale consideration and Rs.1,70,000/- as stamp and registration charges but the defendants did not come forward to perform their part of the contract. Plaintiff has also asserted that the possession of the land was with one Sh. Mastan Singh who had handed over the possession to him and his son Aman Arora. Mastan Singh has given two affidavits in this regard. Plaintiff has also asserted that he also served a notice calling upon defendant no.1 to execute the sale deed. The agreement to sell is also signed by Sh. P.S.Suri son of Mohan Singh Suri (the son of other brother).

5. Dalip Singh, defendant no.1, filed a written statement. Defendant no.1 admitted the execution of the agreement to sell and has shown his willingness to sell the land qua his share. However, he denied that he had entered into an agreement on behalf of his brothers. Paragraph 4 of the written statement filed by defendant no.1 is extracted as under:-

“4. That para no.4 of the plaint is wrong and hence denied. The answering defendant along with his brothers defendants no.2 and 3 never informed the plaintiff regarding their land. In fact the defendant no.1 was willing to sell his share of the land to the plaintiff. The said agreement is to sell the share of the answering defendant alone at the sum of Rs.9,00,000/-(Rs. Nine lacs). The answering defendant never entered into agreement on behalf of other defendants.”

6. Separate written statement was filed by Parvinder Singh i.e. P.S.Suri. He asserted that Mohan Singh Suri and Jaswant Singh Suri have already expired, therefore, claimed that the agreement to sell cannot specifically be enforced. However, defendant no.2-Parvinder Singh Suri admitted that he had signed the agreement to sell to identify Dalip Singh Suri.

7. On appreciation of evidence, learned trial court decreed the suit filed by the