Lack of legal necessity to sell land does not invalidate a specific performance agreement; enforceability is affirmed regardless of personal law principles related to the parties involved.

JUDGMENT :

PANKAJ JAIN, J.

1. Defendants are in appeal aggrieved of the judgment and decree dated 12.12.2023 passed by Additional District Judge, Yamuna Nagar, affirming the judgment and decree dated 17.02.2017 passed by Civil Judge (Sr. Div.), Yamuna Nagar, whereby the suit filed by the plaintiff seeking decree of possession by way of specific performance has been decreed.

2. Plaintiff filed suit for possession by way of specific performance of an agreement to sell dated 07.05.2010 regarding land measuring 23 kanal 3 marlas comprised in khewat/khatauni No.153 min/212, khasra No.25//13, 14 and 18 as per jamabandi for the year 2006-07. As per the plaintiff, defendant agreed to sell the aforesaid land in his favour for total a sale consideration of Rs.18,62,750/-. On the date the agreement to sell was executed, an amount of Rs.10,31,000/- was paid by the plaintiff to the defendant. Both the parties agreed to get the sale deed executed on or before 20.08.2010. The same was later on extended from 20.08.2010 to 19.11.2010. The writing to the said effect was made on the back page of the agreement to sell. Plaintiff claimed that on 19.11.2010, he remained present in the office of Sub-Registrar Radaur alongwith the balance sale consideration and expenses to be borne on the registered sale deed. However, defendant failed to come present to perform his part. On account of failure of defendant, plaintiff served legal notice dated 05.05.2011 calling upon the defendant to come present before Sub-Registrar, Radaur on 17.05.2011 and to execute the sale deed. Plaintiff further claims to have remained present on 17.05.2011 in the office of Sub-Registrar concerned. Defendant having failed to come present on 17.05.2011, the present suit was instituted by the plaintiff on 30.07.2011.

3. Defendant expired before the filing of the written statement. The same was filed by his legal representatives, who denied the execution of agreement to sell. They denied execution of agreement to sale propounded by the plaintiff and claimed the same to be result of forgery and fabrication.

4. The suit filed by the plaintiff was put to trial by the Court of the First Instance framing following issues:-

1. Whether the plaintiff is entitled for possession of suit property by way of specific performance of the agreement to sell dated 07.05.2010? OPP

2. Whether the plaintiff was/is ready and willing to perform his part of contract? OPP

2-A. Whether Nissar Khan had legal necessity to sell the suit property? OPD.

3. Whether the suit of the plaintiff is not maintainable in the present form? OPD.

4. Whether, the plaintiff has no locus standi to file the present suit? OPD.

5. Whether, the plaintiff is estopped from filing the present suit by his own act and conduct? OPD.

5-A. Whether suit land is ancestral property of defendants and Nissar Khan had no right to alienate the same? OPD.

6. Relief.”

5. Deciding issue No.1, 2, 2A and 5A, the Court referred to the statements made by attesting witnesses to the agreement to sell i.e. PW-5 and PW-7 and held that the execution of agreement to sell stands proved. Rejecting plea taken by the defendants regarding absence of legal necessity to sell the land Court found that neither such custom was pleaded nor proved. Even though, the Trial Court did not record any finding on issue No.2 with respect to readiness and willness. However, the Lower Appellate Court took note of affidavit Ex.P-2 and P-3 to return finding of fact that the plaintiff always remained ready and willing to perform his part. The Courts below thus decreed the suit filed by the plaintiff.

6. The findings have been assailed by Mr. Chanderhas Yadav, Advo