- (1.) The substantial question of law involved in this appeal is as to "whether the relinquishment of a claim under Section 12 of the Specific Relief Act, 1963 [for short "the Act"] can be made at any stage of the suit or appeal without incorporating specific pleadings".
(2.) The plaintiff is in second appeal against judgment and decree of both the Courts below by which his suit for specific performance of an agreement to sell has been partly decreed for recovery of Rs.44,000/- and the mortgagee rights held by the plaintiff in the suit land were ordered to be continued.
(3.) The brief history of this case is that the plaintiff filed the suit for specific performance of an agreement to sell alleging that defendant No. 1 (Daulat Ram) was the owner in possession of land measuring 72 Kanals, situated within the revenue estate of village Chhainsa, Tehsil Ballabgarh, District Gurgaon, who agreed to sell it to the plaintiff for a consideration of Rs.65,000/- on 04.07.1977. It transpired between the parties that out of the sale consideration of Rs.65,000/-, a sum of Rs.16,000/- would be retained by the plaintiff towards mortgage money payable by defendant No. 1 to the plaintiff in respect of four mortgage deeds dated 10.06.1974 each for Rs.4,000/-, out of the remaining sale consideration, a sum of Rs.44,000/- was paid as part payment at the time of execution of the agreement and the balance sale consideration of Rs.5,000/- was agreed to be paid at the time of registration of sale deed on 30.05.1978. It was averred by the plaintiff that he has always been ready and willing to perform his part of the contract for the purpose of execution and registration of the sale deed. In this regard, he had approached defendant No. 1 several times and also attended the office of the Sub-Registrar on 30.05.1978 along with requisite amount for registration of sale deed, but defendant No. 1 did not turn up, rather he got a collusive suit filed against himself from defendant Nos.2 to 5 bearing Civil Suit No. 614 of 1978 and transferred the suit land by filing an admitted written statement in their favour. On these broad facts, the plaintiff prayed for decree for specific performance of the agreement to sell dated 04.07.1977 on receipt of Rs.5,000/- and in the alternative, recovery of Rs.65,000/- with costs of the suit and future interest @ 12% per annum from the date of filing of the suit till its actual realization. It was admitted in the written statement that defendant No. 1 is recorded as owner of the suit land but execution of agreement to sell was denied. Defendant No. 1 denied the receipt of Rs.44,000/- as part payment. He alleged that his thumb impressions might have been taken on a blank stamp paper under influence of liquor alleging it to be special power of attorney in favour of Bed Ram for sanction of mutation of mortgage created by him in favour of the plaintiff. The impugned judgment and decree dated 22.12.1978 in favour of defendant Nos.2 to 5 was tried to be justified.;