Rakesh Garg, J. - (1.) THIS is plaintiffs second appeal challenging the judgment arid decree of the Lower Appellate Court whereby her suit for specific performance of the agreement to sell dated 19.6.1992 has been decreed against the respondent to the extent of 1/3rd share only of respondent in the suit property.
(2.) BRIEFLY stated, the case of the plaintiff -appellant is that Chandgi Ram, father of the respondent, was a big land owner with Shamlat rights in Thok Jatan of Rohtak. He died intestate leaving behind the respondent as his sole legal heir. The respondent executed an agreement to sell dated 19.6.1992 in favour of the appellant qua the suit land. The respondent had undertaken to get the requisite mutation qua the suit land sanctioned in his favour and to execute the requisite sale deed in favour of the appellant as per the agreement dated 19.6.1992. However, the respondent failed to execute the requisite sale deed in favour of the appellant despite repeated requests and a legal notice by the appellant. Through the suit, the appellant sought a decree for possession of suit land by way of specific performance of contract of sale dated 19.6.1992 in his favour. The respondents contested the suit by filing written statement. He raised preliminary objections, inter alia, pleading bar of limitation, absence of locus -standi, unlawful nature of impugned agreement dated 19.6.1992, want of cause of action, ancestral nature of suit property, absence of proper valuation of suit, fraud in execution of impugned agreement etc. On merits, the respondent stated that rights of Shamlat Deh of Thok Jatan, Rohtak have not been determined separately because of absence of partition. The respondent pleaded that no one can claim exclusive possession over any part of joint land till partition takes place. The respondent denied that he was the only legal heir of Chandgi Ram and claimed that Chandgi Ram left behind two daughters, namely, Ram Pyari and Mahakali also. The respondent asserted that above -said Ram Pyari and Ma -habir son of Mahakali (since deceased) along with him are owners -in -possession of suit land, in equal shares. The respondent admitted that he entered into an agreement of sale with the appellant to the extent of his 1/3rd share in suit land for a consideration at the rate of Rs. 120/ - per sq. yard. The respondent alleged that taking advantage of his old age, infirmity and illiteracy, the appellant procured his thumb impression upon the impugned agreement to sell after fraudulently mentioning the price of land as Rs. 12/ - per sq.yard. The respondent alleged that the contents of said agreement to sell were not read over to him. He denied having received Rs. 23,200/ - from the appellant at any stage. The respondent prayed that the suit of the appellant be dismissed.
(3.) THE trial Court vide its judgment and decree dated 29.5.2002 dismissed the suit of the appellant.;