HEMANT GUPTA,J - (1.) DEFENDANT Nos. 2, 3 and 4 and some of the legal heirs of defendant No. 1 are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court granting decree of specific performance of the agreement of sale dated 12.6.1979.
(2.) IT is alleged by the plaintiffs that firm of the plaintiff M/s Kanshi Nath and Sons is a tenant under defendant No. 1 Amar Nath. The property in dispute has fallen to the share of defendant No. 1 on the basis of partition effected amongst three brothers, namely, Amar Nath, Bal Kishan Dass (defendant No. 4) and Ram Nath by way of registered partition deed dated 11.6.1948. Amar Nath entered into an agreement of sale with respect to the property fallen to his share with the plaintiff and received a sum of Rs. 5,000/- as an earnest money. The total sale consideration was fixed at Rs. 46,000/-. The sale deed was to be executed on or before 31.12.1979 when the balance sale consideration of Rs. 41,000/- was to be paid before the Sub Registrar. It is pointed out that Bal Kishan Dass (defendant No. 4) filed a false and frivolous suit on 6.10.1979 (Exhibit P.13) against Amar Nath and the present plaintiffs claiming prohibitory injunction restraining Amar Nath (defendant No. 1) from transferring or managing any portion of the property in dispute. Amar Nath claimed his ownership with respect to the property in dispute. The said suit was decreed on 27.2.1980 (Exhibit P15/1) to the effect that defendant No. 1 shall sell or transfer the proprietary rights in respect of the suit property as per the partition deed dated 11.6.1948. Bal Kishan filed another suit for declaration (Exhibit P.11) on 15.4.1980 claiming ownership over the suit property and also claimed a relief of permanent injunction restraining Amar Nath from selling or in any way disposing of any portion of the suit property. The said suit was dismissed on 28.1.1982 (Exhibit P.12). The learned trial Court in the aforesaid suit had granted an exparte injunction order on 18.4.1980 restraining Amar Nath from selling any portion of the suit property as mentioned in para No. 1 of the plaint till further orders.
(3.) IT is also admitted fact that Amar Nath executed sale deed dated 27.11.1981 (Exhibit P.18) for a sale consideration of Rs. 48,000/- in favour of defendant Nos. 2 and 3 i.e. sons of Bal Kishan defendant No. 4 and brother of Amar Nath. After the aforesaid suit for declaration was dismissed on 28.1.1982, the plaintiff filed the present suit for specific performance on 24.3.1982. Amar Nath defendant No. 1 died on 30.10.1983 without filing the written statement. The written statement on behalf of the vendor was filed by his legal representatives alone.;