Date of decision: 12^th November, 2014

Ishwar Singh

Appellant

Versus

Chandro and others

Respondent

!"

1.

Whether Reporters of Local Newspapers may be allowed

to see the judgment?

2.

Whether to be referred to the Reporters or not?

3.

Whether the judgment should be reported in the Digest?

Present:

Mr. Jatin Hans, Advocate

for the appellant.

Mr. Vikrant Rana, Advocate

for the respondents.

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The present appeal has impugned the judgment and

decree dated 26.08.2011 of the Court of learned Additional District

Judge, Bhiwani dismissing the appeal of the plaintiff/appellant and

thus, upholding the findings dated 27.01.2010 of the Court of learned

Civil Judge (Sr. Divn.), Bhiwani dismissing the suit of the plaintiff

Ishwar Singh.

RATTAN PAL SINGH

2015.02.18 15:08

I attest to the accuracy and

authenticity of this document

Punjab & Haryana High Court

2

The following substantial question of law was framed for

consideration of this Court:

Whether there has been legally and validly

executed agreement to sell Ex.P1 between the

parties, if so to what effect?

After hearing Mr. Jatin Hans, Advocate for the appellant

and Mr. Vikrant Rana, Advocate for the respondents and on perusal of

the records.

It is the case of the plaintiff/appellant who has sought a

decree for specific performance of the agreement to sell dated

16.09.2002 Ex.P1 in respect of the land being 46/276 share out of the

total land measuring 13 Kanals 16 Marlas equal to 2 Kanals 6 Marlas

and 1/2 share out of land measuring 10 Kanals 11 Marlas equal to 5

Kanals 5 Marlas, in all totaling to 7 Kanals 11 Marlas (wrongly

depicted as 7 Kanals 7 Marlas) duly described and depicted in the

head note of the plaint, situated in the revenue estate of village

Gujrani, claiming that defendants No.1 and 2 were owners of this land

and through this arrangement had sought to agree and sell this land

for a total sale consideration of 1,80,000 to the plaintiff and received

1,50,000 as earnest money. Plaintiff has sought the decree in

question to the effect that the defendants were trying to evade their

obligation whereas he was ready and willing to pay the balance

consideration amount of 30,000 which was to be adjusted from the

mortgage amount of this land and that the sale deed was to be

RATTAN PAL SINGH

2015.02.18 15:08

I attest to the accuracy and

authenticity of this document

Punjab & Haryana High Court

3

executed on or before 30.03.2003 which the defendants refused and

hence the suit in question.

It is stand of the defendants that they never entered into

any such agreement with the plaintiff claiming that Shish Ram son of

Ramji Lal son of Nand Lal, brother of defendants No.1 and 2 was

owner in possession of the suit land and he executed a registered

mortgage deed of this part of the land measuring 10 Kanals 11 Marlas

for a sum of 40,000 on 14.06.1999 in favour of the plaintiff regarding

which mutation No.3168 was sanctioned and that the plaintiff was still

mortgagee and in possession of this property. It is further alleged by

the defendants that Shish Ram died in July 2000 and thus, being a

bachelor and issueless his property devolved upon the three

defendants along with their sister Misro who are owners in equal share

of this property. It is contended that Misro has gifted her share to

defendant No.3 in February 2002 through Ex.D3/Ex.D4 and then,

defendants No.1 and 2 executed a release deed of their shares in

favour of defendant No.3 through registered document dated

15.11.2002 Ex.D2 and therefore, defendant No.3 was owner in

possession of the entire share earlier owned by Shish Ram.

On the basis of these pleadings, learned trial Court framed

the following issues:

1.

W