Date of decision: 21^st August, 2013

Ishwar Singh and others

Appellants

Versus

Ved Parkash

Respondent

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Present:

Mr. Ashwani Gaur, Advocate for the appellants.

Mr. P.K. Gupta, Advocate for the respondent.

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This is defendants9 second appeal challenging the judgment

and decree dated 11.05.2011 of the lower appellate Court whereby

appeal filed by the plaintiff/respondent against dismissal of his suit vide

judgment and decree dated 17.11.2010 of the Civil Judge (Junior

Division), Sonepat has been accepted and his suit for specific

performance of the agreement to sell in question with a further direction

to the defendant/appellants to execute the sale deed in his favour and

further restraining them from alienating the suit property to anyone

except the plaintiff/respondent, has been decreed.

Plaintiff/respondent filed the instant suit pleading that

Chander son of Bhai Ram, father of the appellants, was owner of the

suit land measuring 4 Kanals 9 Marlas. He agreed to sell the suit land

in favour of the plaintiff/respondent @ 6.00 lakh per acre and

Singh Rattan Pal

2013.08.23 16:57

I attest to the accuracy and

integrity of this document

High Court, Chandigarh

2

received 1,24,000 as earnest money and executed an agreement to

sell and receipt dated 09.04.2004 in the presence of the witnesses. At

that time, the land was under mortgage with one Maha Singh. The

vendor had undertaken to get the land cleared from attachment and

mortgage before execution of the sale deed on or before 30.04.2004.

On the appointed day, the plaintiff/respondent waited for vendor

Chander, but he did not turn up to perform his part of the contract,

whereas the plaintiff/respondent was ready with the sufficient funds for

balance sale consideration and expenses. The plaintiff/respondent

approached the vendor on the next day, who disclosed him that he was

unable to redeem the mortgage for want of funds; however, he assured

execution of the sale deed after getting the said land redeemed.

It is further the case of the plaintiff/respondent that said

Chander died on 13.06.2004 leaving behind legal heirs i.e. the

defendants/appellants as also another son, namely, Prem and two

daughters namely Omi Devi and Sheela Devi. Mutation of inheritance

of Chander was sanctioned in favour of these six legal heirs on

22.06.2004.

The

plaintiff/respondent

requested

the

defendant/

appellants as well as other legal heirs to execute the sale deed in terms

of the agreement dated 09.04.2004. Three legal heirs, namely, Prem

Chand, Omi Devi and Sheela Devi came forward and executed the sale

deed on 25.10.2004 in respect of half share of the total land measuring

4 Kanals 9 Marlas in favour of the plaintiff/respondent but the

appellants did not come forward to execute the sale deed of their half

Singh Rattan Pal

2013.08.23 16:57

I attest to the accuracy and

integrity of this document

High Court, Chandigarh

3

share in his favour. Consequently, a legal notice dated 10.02.2005 was

sent to the defendant/appellants by the plaintiff/respondent through his

counsel calling upon them to execute the sale deed. Since the

appellants failed to execute the sale deed, necessity arose to file the

instant suit.

Appellant No.1 filed written statement separately whereas a

joint written statement was filed on behalf of appellants No.2 and 3

raising various preliminary objections and controverting the averments

made on behalf of the plaintiff/respondent. Appellant No.1 set up a

case of total denial. Execution of the sale deed as also of the receipt in

question by Chander was denied. The agreement in question was

alleged to be false and frivolous. However, it was conceded that the

land was under mortgage. Receipt o