The main legal point established is the requirement to prove receipt of notice, the absence of restriction on further execution of agreements to sell, and the determination of co-parcenary property status after partition.

Anil Kshetarpal, J.

Defendant-appellant is in the regular second appeal against the judgment passed by the learned first appellate court.

2. Undisputed facts are that Uttam Singh, father of the plaintiff (since deceased) was a tenant on the land in dispute measuring 9 Bigha and 15 Biswas. The defendant-appellant agreed to sell the aforesaid land to late Shri Uttam Singh, father of the plaintiff, for a sum of Rs.6500/-, vide agreement to sell dated 15.5.1978. On execution of the agreement to sell, the defendant-appellant received Rs.2,000/- as earnest money. The father of the plaintiff was already in possession of the aforesaid land as tenant, therefore, he continued in possession thereof.

3. The agreement to sell is Ex.P1 on the file. It is provided in the agreement to sell that when the defendant-appellant got the mutation of the land sanctioned in his favour, he would inform Shri Uttam Singh, father of the plaintiff, about the sanction of mutation. It is also provided that sale-deed was to be executed by the defendant within 15 days of intimation of sanction of mutation in his favour.

4. The defendant-appellant claimed that mutation was sanctioned in his favour on 11.7.1986 and he sent a notice under postal certificate to the father of the plaintiff for inviting him to come and execute the sale-deed. Uttam Singh, father of the plaintiff, expired on 30.12.1986. Defendant-appellant filed a suit for possession on the basis of ownership. On receipt of notice, the plaintiff, legal heir of Uttam Singh, filed a suit for specific performance of the agreement to sell.

5. This appeal is arising out of the aforesaid suit for possession by way of specific performance of the agreement to sell. The learned trial court dismissed the suit after recording the following findings:-

(i) Letter dated 1.8.1986 sent through UPC is deemed to have been delivered to Shri Uttam Singh.

(ii) Uttam Singh was not ready and willing to perform his part of the contract as he had already received Rs.33,000/- by entering into further agreement to sell with one Shri Harbhajan Singh. This fact reflects poor financial condition of Uttam Singh.

(iii) The plaintiff, even after service of notice by the defendant for calling upon him to execute the sale deed within a period of 15 days, did not attend the office of Sub-Registrar.

(iv) The plaintiff did not step into the witness box and only his attorney appeared who belongs to other district.

(v) The agreement to sell entered by the plaintiff in favour of Harbhajan Singh is in violation of the agreement to sell with defendant-appellant-Jagdeep Singh dated 15.8.1978.

(vi) The suit is bad for non-joinder of parties as the plaintiff has although claimed Will in his favour by his father Uttam Singh. However, the aforesaid Will has not been proved and the plaintiff has not impleaded his mother and sister as party.

6. The learned first appellate court in appeal has reversed the findings of the learned trial court after re-appreciating the evidence available on the file. The first appellate court has held that the agreement to sell (a contract between the parties), provided that the defendant-appellant would send the information to the father of the plaintiff after getting the mutation sanctioned in his favour. The letter sent under postal certificate does not carry presumption of delivery and no evidence has been produced on the file to prove that the letter was infact received by Shri Uttam Singh. The first appellate court has further recorded the finding that the plaintiff was ready and willing to perform his part of the contract as he had sufficient money having received Rs.33,000/- from Harbhajan Singh, vide agreement to sell dated 2.6.1982 Ex.D2 on the file. The learned first appellate court further held that the other reasons given by the learned trial court are not correct.

7. I have heard the learned counsel for the parties at length and with their able assistance gone through the impugned judgments passed by the court