The main legal point established in the judgment is that the time essence of the contract, the payment of sale consideration, and the alteration of the contract are crucial factors in determining the entitlement for specific performance of the agreement to sell.

JUDGMENT :

ANIL KSHETARPAL, J.

1. By this judgment, Regular Second Appeals No.1511 and 3022 of 2019, arising from a common judgment and decree passed by the learned trial Court as well as by the learned first appellate court while deciding a suit for possession by way of specific performance of the agreement to sell shall stand disposed of. The parties to these appeal are being referred to as per their status in the suit.

2. Regular Second Appeal No.1511 of 2019 has been filed by defendant no.1 to 5, whereas Regular Second Appeal No.3022 of 2019 has been filed by the plaintiff. It may be noted here that defendant no.6 before the trial court as well as before the first appellate court was proceeded against ex-parte. In memo of parties of the Regular Second Appeal No.1511 of 2019, defendant no.6 has been impleaded as proforma respondent. Defendant no.6 is stated to be lessee of the land.

3. In the considered view of this court, the following substantial questions of law require adjudication:- .

(1) Whether denial of relief of specific performance of the agreement to sell on the ground that the suit was filed after a period of 6 years from the date of agreement is appropriate particularly when the payment of complete amount of sale consideration with delivery of possession stands proved and in the agreement there was no specific date or period for the execution of the sale deed?

(2) Whether after novation of contract, the terms of previous contract, which stand superseded by a new contract, can be made basis to deny the relief of specific performance of the agreement to sell?

4. At the outset, it must be noticed that both the courts have recorded concurrent findings of fact to the effect that there was an agreement to sell between the plaintiff and late Sh. Ram Sarup Sardana on 03.12.1999 followed by another agreement-cum-receipt dated 28.12.2000 under which the entire sale consideration was paid. The prospective seller/vendor late Sh. Ram Sarup Sardana, who died on 08.12.2001 was the uncle (father's brother) of the plaintiff-Col. Sudhir Kumar Sardana. Late Sh. Ram Sarup Sardana used to reside in Delhi, whereas the land is located in Village Dahima, Tehsil and District Hisar, where the plaintiff resides. Thus, the parties are closely related.

5. The execution of the agreement to sell dated 03.12.1999 with respect to the land measuring 92 kanals 11 marlas and receipt of earnest money is not disputed by the parties. However, thereafter defendant no.1 to 3 who are class-I heirs of the original prospective vendor, do not admit the execution of the receipt-cum-agreement dated 28.12.2000 by late Sh. Ram Sarup Sardana on receipt of Rs.17,45, 856/-.

6. On the death of late Sh. Ram Saroop Sardana, the land was inherited by defendant no.1 to 3. Defendant no.2 and 3 transferred the property in favour of defendant no.1 i.e. Lalit Kumar Sardana. In other words, the widow and the daughter of late Sh. Ram Saroop Sardana transferred the property in favour of Sh. Lalit Kumar Sardana son of Late Sh. Ram Sarup Sardana. Thereafter, defendant no.1 executed two registered sale deed, one in favour of Smt. Sushila wife of Ram Avtar with respect to land measuring 86 kanals and 6 marlas and second in favour of Ajmer with respect to land measuring 51 kanals and 3 marlas. He also executed a lease deed of the land.

7. The plaintiff filed the suit on 21.12.2006. The plaintiff sought possession by pleading that he was forcibly dispossessed by defendant no.5 and 6 who are famous for land grabbing.

8. On completion of the pleadings, the learned trial court framed the following issues:-

“1. Whether the plaintiff is entitled for a decree for possession by way of specific performance of the agreement dated 03.12.1999 and receipt-cum-agreement dated 28.12.2000 as alleged?OPP

2. If issue No.1 is proved then whether the sale deed No.4036 dated 30.06.2006, lease deed No.4038