RSA No.4235 of 2014 (O&M)

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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH

RSA No.4235 of 2014 (O&M)

Date of Decision.23.03.2018

Krishan Pal and others

......Appellants

Vs

Amar Nath Pandey and others

.....Respondents

CORAM:HON'BLE MR. JUSTICE AMIT RAWAL

Present:

Mr. R.S. Mamli, Advocate

for the appellants.

Mr. N.D. Achint, Advocate

for the respondents.

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AMIT RAWAL J.(ORAL)

The appellants-defendant Nos.1 to 3 i.e. Krishan Pal, Kailash

Chand and Rajbir (since deceased) represented through legal heirs, who

were ex parte before the trial Court are in regular second appeal against the

judgment and decree rendered by the lower Appellate Court whereby suit

for specific performance of the agreement to sell dated 26.8.2004 in respect

of their share has been partly decreed by taking out the share of defendant

Nos.4 and 5, who were land owners, for want of permission.

The respondent-plaintiff instituted the suit for specific

performance of the agreement to sell dated 26.8.2004 in respect of the land

measuring 4 kanals as described in para 2 of the plaint (hereinafter called

the “suit property”). It was submitted that in the aforementioned suit

property, the defendant No.1 had 1/9^th share, respondent No.3 1/36^th share

and defendant No.4 and 5 1/54^th share each. They agreed to sell the same

@`10 lacs per acre. On the date of execution of the agreement, defendant

No.1 received `29,680/- by virtue of cheque No.079158 dated 26.8.2004

PANKAJ KUMAR

2018.04.16 17:51

I attest to the accuracy and

integrity of this document

RSA No.4235 of 2014 (O&M)

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and the defendant No.2 received an amount of `7465/- in cash, defendant

No.3 received an amount of `7465/- in cash and respondent No.4 and 5

received an amount of `2490/- each in cash. The stipulated date for

execution and registration of the sale deed was 15.01.2005 but the

defendants did not come forward, necessitating the plaintiff to institute the

suit on 1.03.2006.

The appellants, who were defendant No.1 and 2 before the trial

court and as well as the lower Appellate Court, were proceeded ex parte and

legal heirs of defendant No.3 were also proceeded ex parte. The suit was

contested by defendant Nos.4 and 5 categorically stating that they were co-

owners and their share could not be agreed to be sold without permission of

the Court. The trial Court on the basis of the aforementioned pleadings

framed the following issues:-

“1. Whether the defendants entered into an agreement to sell

the suit land on 26.8.2004 in favour of the plaintiff?OPP

2. Whether the plaintiff remained ready and willing to

perform his part of contract? OPP

3. Whether the plaintiff is entitled to specific performance of

agreement dated 26.8.2004? OPP

4. Whether the plaintiff has no cause of action and no locus

standi to file the present suit? OPD

5. Whether the suit of the plaintiff is not maintainable? OPD

6. Whether the suit of the plaintiff is bad for mis joinder and

non joinder of necessary parties? OPD

7. Relief.”

In support of his case, the plaintiff examined Virender Kumar,

PANKAJ KUMAR

2018.04.16 17:51

I attest to the accuracy and

integrity of this document

RSA No.4235 of 2014 (O&M)

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Clerk of OBC, Palam Vihar, Gurgaon as PW1, Ashok Kumar Sharma,

attesting witness as PW2, who has produced his affidavit on record as

Ex.PW2/A and stepped into witness box himself as PW3 by placing his

affidavit on record as Ex.PW3/A and tendered certain documents on record.

On the other hand, defendant No.4 and 5 did not produce any evidence at

all.

The trial Court on the basis of the evidence on record partly

decreed the suit to the extent of recovery of the earnest money/part payment

paid by the plaintiff to the defendants as described in para No.3(b) of the

plaint in terms of agreement dated 26.8.2004 along with interest @6% per

annum. In appeal, the lower Appellate Court set aside the ju