The main legal point established in the judgment is the entitlement to specific performance of an agreement to sell, and the requirement of readiness and willingness on the part of the plaintiff.

ORDER

Anil Kshetarpal, J. - It has been brought to the notice of the Court that defendant No.1 along with his three other brothers had entered into a separate agreements to sell with respect to adjoining pieces of land in favour of the plaintiff-company. The plaintiff-respondent (the company) filed five suits for specific performance of the various agreements to sell. All the remaining suits were also ordered to be decreed. Before the first Appellate Court, the parties settled the dispute as the plaintiff-company agreed to pay the balance amount of the sale consideration as also additionally undertook to allot one flat each.

2. Learned counsel for the respondents has submitted that similar offer has been given to learned counsel for the appellants herein. However, learned counsel for the appellants have stated that they have spoken to the appellant(s), but the offer is not acceptable and want the Court to decide the appeals on merits.

3. Two different sets of defendants have filed these regular second appeals against the concurrent findings of fact arrived at by the Courts below while decreeing the suit for specific performance of the agreement to sell.

4. Some facts are required to be noticed.

5. The respondent-plaintiff filed the suit claiming that the defendant No.1-Sri Krishan son of Sh. Narain Singh (appellant in RSA-30-2021) agreed to sell 15 kanals 8 marls of land @ Rs. 50,00,000/- per acre for a total sale consideration of Rs. 96,25,000/- on receipt of Rs. 9,66,500/- as earnest money. Out of which Rs. 7,21,875/- was paid through cheque drawn in favour of defendant No.1 on 15.12.2005, whereas the remaining amount was paid in cash.

6. It has come on record that defendant No.1 transferred the property in question in favour of defendant no.2 and 3 (his own sons) vide release (transfer) order dated 18.09.2006, but the plaintiff came to know about this fact on 12.12.2006. As per the agreement to sell, the sale deed was agreed to be executed and registered on or before 14.12.2006. The plaintiff-Company on 22.11.2006 issued a notice, calling upon defendant No.1 to come and execute the sale deed as per agreement to sell. However, there was no response.

7. The plaintiff instituted the suit on 26.02.2007. On notice, the defendants contested the suit and it was claimed that apart from the written agreement there was an oral understanding that defendant would be paid the price @ Rs. 3,00,00,000/- per acre. The receipt of payment of Rs. 7,21,875/-made through cheque was admitted. However, the receipt of remaining payment through cash was denied. Defendant No.1 also pleaded that Hari Singh, one of the witness of margin got the agreement signed from him. Defendant No.2 to 5 pleaded that the land is ancestral and therefore, defendant No.1 is not entitled to sell it.

8. As noticed above, both the Courts, on appreciation of evidence, have found that the plaintiff has successfully proved its case and therefore, entitled to a decree for specific performance of the agreement to sell. The plaintiff examined Sharad Mohan Parsad, a bank official as well as attesting witness of the agreement to sell, Ram Krishan.

9. This Court has heard learned counsel for the parties at length and with their able assistance, perused the paper books of both the appeals.

10. Learned counsel appearing for the appellants-defendant No.2 and 3 submits that in the written statement, it was pleaded that the property is ancestral and therefore, the defendants had no right to sell. He contends that both the Courts below have neither framed issue on this aspect nor have adverted to this fact. He further submits that the appellant has filed an application for leading additional evidence before the First Appellate Court, which had been wrongly dismissed.

11. On the other hand, learned counsel representing defendant No. 1-appellant contends that the plaintiff has failed to prove its readiness and willingness which is sine qua-non for decreeing the suit for specific performance. He fur