RAKESH KUMAR JAIN,J. - (1.) THE plaintiff (Jagjit Singh Sayal) filed a suit for specific performance of an agreement to sell dated 06.5.1991 in respect of land and building measuring 21 kanals 19 marlas bearing Khasra No. 157/21 (7-19), 168/5/1 (6-0), 156/25 (8-0) comprised in Khewat No. 425, Khatoni Nos.557 and 558 as per jamabandi pertaining to year 1989-90 situated in village Naag, Tehsil and District Amritsar with all the rights, inclusive of securities, electric connections and installations, on payment of balance amount of Rs. 1,70,219/- and in the alternative, for recovery of Rs. 5,28,000/-with interest, with consequential relief of permanent injunction restraining the defendants from forcibly and illegally dispossessing him and from selling, mortgaging, leasing or alienating the property in dispute in any manner. The suit of the plaintiff was decreed by the trial Court against defendant No. 1. only for recovery of Rs. 2,63,000/- to be paid by defendant No. 1. to the plaintiff along-with interest @ 18% per annum from 06.5.1991 till realization. The suit qua defendant Nos. 2 to 4 was dismissed vide judgment and decree dated 4.12.2003.
(2.) THE learned First Appellate Court on an appeal preferred by the plaintiff, partly decreed the suit against respondent No. 1 for specific performance of agreement to sell dated 06.5.1991 to the extent of share of defendant No. 1 in the suit land subject to adjustment of the amount already received by defendant No. 1. from the plaintiff as sale consideration of his share. It was also ordered that if the amount of earnest money exceeds the sale consideration amount of share belonging to defendant No. 1, then he (defendant No. 1) shall be liable to refund the said amount along-with interest @ 6% per annum from the date of agreement till the date of realization. Rest of the suit was dismissed. It is against the aforesaid decree of the learned First Appellate Court, defendant No. 1 has come up in this appeal. The case of the plaintiff is that the defendant constitute a Joint Hindu Undivided Family and are joint owners of land measuring 21 kanals 19 marlas bearing Khasra No. 157/21 (7-19), 168/5/1 (6-0), 156/25 (8-0) comprised in Khewat No. 425, Khatoni Nos.557 and 558, situated in village Naag, Tehsil and District Amritsar. On part of the suit land, a poultry farm building has been constructed which has been given to the plaintiff in the year 1987 on rent @ Rs. 1500/- per month for the purpose of running a poultry farm. The plaintiff has been running the business of poultry farm in the said premises under the name and style of M/s. J.J.Broiler Farm. During the subsistence of his tenancy, defendant Nos. 2 to 4 through their attorney defendant No. 1. and defendant No. 1, executed a legal and valid registered lease deed dated 06.5.1991 in favour of the plaintiff @ Rs. 3000/- per year and on the same day, the defendant No. 1 himself and defendant Nos. 2 to 4 executed an agreement to sell in favour of the plaintiff through their attorney -defendant No. 1 for the sale of aforesaid land and building @ Rs. 85,000/- per acre total amounting to Rs. 2,33,219/- along-with building plus appurtenances and fixtures for a sum of Rs. 2,00,000/- all totalling Rs. 4,33,219/-. The defendants had received a sum of Rs. 2,63,000/- at the time of execution of the agreement to sell and balance amount of Rs. 1,70,219/- was agreed to be paid at the time of execution of the sale deed. It was mutually agreed between the parties that the sale deed shall be executed after the defendants got their property released from mortgage from the United Commercial Bank. Fruther, the case of the plaintiff is that he has been ready and willing with the balance money to perform his part of the agreement and in pursuance thereof, he served a legal notice upon the defendants on 16.1.1994 through his counsel,but they failed to get the suit property redeemed from mortgage and execute the sale deed in his favour. The plaintiff has averred that few days prior to the filing of the suit, when the plaintiff again asked the defendants to get the sale deed executed, they flatly refused. Hence, this suit was filed.
(3.) DEFENDANT No. 1 filed his separate written statement in which he took up preliminary objections that the plaintiff has not complied with the requirement of agreement in question and has not shown his readiness and willingness to perform his part of the agreement. It is also alleged that the land in dispute has already been redeemed from the Bank on 28.8.1990 but the suit is not properly valued for the purposes of Court fee and jurisdiction. On merit, it was alleged that the property in dispute is not Joint Hindu Undivided Family Property and is rather self acquired property of all the defendants, but it was admitted that the building where the poultry farm is located is on rent with the plaintiff @ Rs. 1500/- per month. It was denied that defendant Nos. 2 to 4 had ever given any power of attorney to defendant No. 1. It was also alleged that the plaintiff had failed to perform his part of the agreement as he was not having ready money for purchasing the stamp and for payment of registration charges.;