The court upheld the agreement to sell's execution and the plaintiff's readiness to perform the contract. Specific performance granted with enhanced consideration due to market changes reflecting the defendant’s obstructive conduct. Procedural bars raised were dismissed.

JUDGMENT :

DEEPAK GUPTA, J.

This Regular Second Appeal is directed against the concurrent findings recorded by both the Courts below, whereby the suit for possession by way of specific performance filed by the plaintiff–respondent Cholar Ram was decreed by the learned trial Court vide judgment dated 30.11.1995, and the appeal preferred by the defendant–appellant Kuda Ram was dismissed by the learned First Appellate Court on 08.10.1996.

2. To avoid any confusion, the parties are being referred to as per their status before the trial Court. The record of the Courts below (available on DMS) has been perused with the able assistance of learned counsel for both sides.

3.1 Plaintiff’s Case :The case of the plaintiff is that defendant No.1 – Kuda Ram, by virtue of an agreement to sell dated 28.05.1990 (Ex.P1), agreed to sell his ½ share out of agricultural land measuring 48 Kanal 8 Marla situated in village Koer, Tehsil and District Karnal, as described in para 2 of the plaint, for a total sale consideration of Rs.1,92,540/-. An amount of Rs.25,000/- was paid as earnest money vide receipt (Ex.P2) at the time of execution. It was stipulated that the sale deed would be executed and registered on or before 28.12.1990 upon payment of the balance sale consideration, and that possession would also be delivered on that day. Since part of the land measuring 8 Kanal was under mortgage with one Jado Ram, it was agreed that the defendant would get the same redeemed before execution of the sale deed.

3.2 The plaintiff averred that he was and continued to remain ready and willing to perform his part of the contract. However, despite repeated re- quests, defendant No.1 failed to perform his part and ultimately refused to ex- ecute the sale deed. Consequently, the plaintiff filed Civil Suit No. 745 of 1990 for permanent injunction to restrain the defendant from alienating the property or suffering any collusive decree. In that earlier suit, the defendant appeared and filed written statement admiJng the execution of the agreement to sell, but took the objection that a suit for injunction was not maintainable, and that the plaintiff should have filed a suit for specific performance.

3.3 Subsequently, the plaintiff discovered that defendant No.1 had suffered a consent decree dated 20.11.1990 in Civil Suit No.1599 of 1990 in favour of his sons—defendant Nos.2 to 4, purporting to transfer the suit land to them. The plaintiff alleged the said decree to be collusive, null and void, and prayed for a decree of specific performance of the agreement dated 28.05.1990 along with a declaration that the judgment and decree dated 20.11.1990 was illegal and not binding on his rights.

4. Stand of the Defendants : The defendants filed written statement resisting the claim. They asserted that the property in question was ancestral and joint Hindu family property, of which defendant No.1 was only the Karta, and thus had no authority to alienate it. The execution of the alleged agreement to sell or receipt of earnest money was categorically denied. It was contended that since there was no valid agreement between the parties, the question of readiness and willingness on the part of the plaintiff did not arise. The defendants also denied that defendant No.1 had admitted execution of any such agreement in the earlier injunction suit. They maintained that the decree dated 20.11.1990 was based on a valid family settlement, and not a sham transaction. With these submissions, dismissal of the suit was prayed for.

5. Rejoinder : In his rejoinder, the plaintiff reiterated the averments made in the plaint and denied the defence set up by the defendants.

6. Findings of the trial Court :AMer framing necessary issues and upon consideration of the pleadings and evidence led by both parties, the learned trial Court, vide judgment