RAJIV SAHAI ENDLAW, J. - (1.) THE appeal impugns the ex parte judgment and decree dated 13th November, 2013 of the Court of the Addl. District Judge -06 (West), Tis Hazari Courts, Delhi of specific performance against the appellants, directing the appellant no.1 to execute the Sale Deed/Relinquishment Deed in favour of the respondent/plaintiff in respect of property No.C -25, New Krishna Park,Dhauli Piau, New Delhi - 110 018.
(2.) THE appeal came up for admission/hearing, first on 18th December, 2013 when the counsel for the respondent/plaintiff being on caveat appeared. Though this is a first appeal but considering the nature of the controversy and since copies of the entire relevant Trial Court record had been filed with the Memorandum of Appeal, with the consent of the counsels the appeal was finally heard and judgment reserved. However by way of abundant caution the Trial Court record and the file of W.P.(Crl.) No.272/2008 referred to in the impugned judgment was also requisitioned. The counsels during the hearing also referred to two other criminal writ petitions which were also pending along with W.P.(Crl.) No.272/2008. The counsels were directed to furnish particulars thereof. The counsels informed the numbers of the said writ petitions to be W.P.(Crl.) No.269/2008 and W.P.(Crl.) No.271/2008. The record thereof has also been requisitioned. The respondent/plaintiff on 26th November, 2009 instituted the suit from which this appeal arises, for the reliefs of specific performance and injunction, pleading: - (a) that the appellant no.1 is the brother and the appellant no.2 Shri Aman Gaur is the nephew of the respondent/plaintiff; (b) that the respondent/plaintiff and the appellant no.1 along with their two other brothers purchased number of properties, out of funds of the joint family business, in the names of the members of the joint family; (c) that one such property was property No.C -25, New Krishna Park, Dholi Piau, New Delhi which was purchased in the names of the other two brothers of the respondent/plaintiff and the appellant no.1; (d) that the other two brothers of the respondent/plaintiff and the appellant no.1 have since died; (e) that the appellant no.1 got executed a registered Gift Deed in his favour with respect to the 50% share of one of the said brothers; (f) that in or about 1999 disputes arose between the respondent/plaintiff and the appellants and some FIRs were also got registered against each other; (g) that the appellant no.1 also filed a suit for partition against the respondent/plaintiff and his sons and also against the legal heirs of one of the deceased brothers with respect to the said property, suppressing the factum of the said property having been acquired from the joint family funds; (h) the respondent/plaintiff contested the said suit for partition pleading that the property had been acquired through the joint family funds; (i) that a family settlement was arrived at amongst the family members of the respondent/plaintiff, appellant no.1 and the legal representatives of the two deceased brothers and which was got registered before the Sub Registrar on 15th April, 2008 and under which settlement the respondent/plaintiff, appellants and the legal representatives of each of the two deceased brothers had 1/4th share each in the aforesaid property; (j) that after the family settlement, the appellant no.1 approached the respondent/plaintiff and made a proposal that the respondent/plaintiff should purchase the share of the appellant no.1 in the aforesaid property and to which the respondent/plaintiff agreed; (k) that the appellants demanded a sum of Rs.10 lacs in lieu of their share in the aforesaid property; (l) the respondent/plaintiff gave a cheque of Rs.10 lacs in the name of Shri Gulshan Kumar from the account of his son Sh. Vivek Gaur; the said cheque was duly honoured and the appellants handed over the vacant and peaceful physical possession of their share of the suit property; (m) that the respondent/plaintiff and the appellant no.1 filed Criminal Writ Petitions for quashing of the FIRs lodged against each other; (n) that the appellant no.1 also filed an affidavit in W.P.(Crl.) No.272/2008 stating the factum of relinquishing his share in the said property; (o) that the respondent/plaintiff approached the appellant no.1 for executing a Sale Deed or for relinquishing his share through a Deed of Relinquishment as per the affidavit filed in W.P.(Crl.) No.272/2008 but the appellant no.1 avoided; (p) that some differences arose between the respondent/plaintiff and the appellants and complaints were made against each other in various Government Departments; and, (q) that the respondent/plaintiff has already paid the entire sale consideration and has been ready and willing to purchase the share of the appellants in the aforesaid property. accordingly, decree for specific performance directing the appellant no.1 to execute the Sale Deed or Deed of Relinquishment in favour of the respondent/plaintiff in respect of his share in the aforesaid property and in the alternative a decree for recovery of Rs.10 lacs with interest, besides of injunction restraining the appellants from dealing with the property was sought.
(3.) THE appellants failed to appear in the suit despite service and were proceeded against ex parte. The respondent/plaintiff in his ex parte evidence, besides himself examined Shri Sandeep Gaur son of his deceased brother as well as the Clerk from the Record Room of this Court to prove the certified copy of the affidavit filed in W.P.(Crl.) No.272/2008.;