Agreement to sell – Specific Performance – Vague agreement not to be decreed even though validly executed.

Mr. Raj Mohan Singh, J.:- Vide this common judgment RSA Nos.1175-A, 1477 of 1991 and CR No.1665 of 1991 are being decided as common issue is involved in all these appeals. Common facts are being noted in order to understand the controversy in a proper way.

2. Brief facts as gathered from the record are that a civil suit for possession by way of specific performance was filed by plaintiffs-Balwinder Singh and Dalbara Singh sons of Nirmal Singh against Sant Kaur widow of Balbir Singh. According to the plaintiffs an agreement to sell was executed on 13.09.1984 in respect of 4 Kanals 6 Marlas of land for a total sale consideration of Rs.15,500/- and earnest amount to the tune of Rs.7,000/- was allegedly paid at the time of execution of the agreement. The target date for execution of sale deed was fixed on or before 15.06.1985 on receipt of remaining sale consideration. Plaintiffs alleged that defendant did not execute the sale deed despite readiness and willingness on their part. The suit for specific performance came to be filed on the basis of agreement to sell dated 13.09.1984 with regard to 4 Kanals 6 Marlas of land as mentioned in the plaint.

3. Defendant was proceeded against ex parte on 07.03.1987. Thereafter plaintiffs proceeded to adduce the ex parte evidence by examining Harbans Singh Deed Writer as PW-1 and Sajjan Singh attesting witness as PW-2. Balwinder Singh one of the plaintiff himself stepped into the witness box as PW-3. The Scribe and attesting witnesses viz. Harbans Singh and Sajjan Singh proved the execution of agreement to sell in favour of the plaintiffs. The witnesses stated that the agreement to sell (Ex.P-1) was executed in favour of the plaintiffs after admitting the contents of agreement to sell and payment of Rs.7,000/- as earnest amount. One of the plaintiff Balwinder Singh also proved the agreement to sell executed by the defendant. Perusal of the agreement would reveal that the area so agreed to be sold was 4 Kanals 6 Marlas of land out of 52 Kanals 6 Marlas of land comprised in Khasra Nos.14/21/2/22/2, 22/3, 23/1/1, 3/2, 28/4,5,6,7,14/1 and 15/1.

4. After appraisal of the evidence, trial Court dismissed the suit vide judgment and decree dated 06.10.1988 by holding that as per jamabandi (Ex.P-4) for the year 1980-81, Sant Kaur was not found to be owner of Khasra No.28/14/1 and 15/1. In the remaining land, Sant Kaur was having only 82 shares out of 722 shares in total. The total land mentioned in the jamabandi (Ex.P-4) was 36 Kanals 2 Marlas in which defendant Sant Kaur was having 82/72 shares which came to less than 4 Kanals 6 Marlas as agreed to be sold by way of an agreement to sell. Trial Court observed that agreement to sell was vague as it did not disclose the area of each khasra numbers which the defendant agreed to sell to the plaintiffs. It was held by the trial Court that agreement to sell was not legally enforceable for want of title of the defendant to the land in question and the land being discrepant with regard to the area of each khasra numbers which was allegedly agreed to be sold. The vagueness in agreement to sell was not curable.

5. Feeling aggrieved against the judgment and decree dated 06.10.1988 passed by Sub-Judge Ist Class, Ludhiana the plaintiffs went in appeal before the lower Appellate Court. During pendency of the First Appeal before the lower Appellate Court, defendant Sant Kaur died and there was a contest between two sets of legal representatives of Sant Kaur. Both the sets of legal representatives claimed impleadment as legal representative of Sant Kaur. Vide order dated 11.01.1991, lower Appellate Court impleaded Ujjagar Singh, Darshan Singh, Sewa Singh, Tehal Singh and Amarjit Singh sons of Ram Ditta as legal representatives of Sant Kaur and substituted them in place of Sant Kaur. Another set of legal representatives, who claimed their right were Shamsher Singh, Amarjit Singh, Paramjit Kaur and Charanjit Kaur sons and daughters of Sh. Nagender Singh.

6. How