Prashant Kumar Agarwal, J. - (1.) THE defendant -appellants have preferred this Civil First Appeal under Sec. 96 of the Code of Civil Procedure against the judgment and decree dt. 26.7.2008 passed by Additional District Judge (Fast Track) No. 1, Jhunjhunu in Civil Suit No. 72/2006 whereby the learned trial Court has decreed the suit for declaration, specific performance of agreement to sell and permanent injunction filed by the plaintiff -respondent. There is no dispute between the parties regarding following facts: (i) Plaintiff -respondent and defendant -appellants are real brother beings sons of one Shri Bhura Ram. (ii) They are co -tenants of agricultural land comprising in Khasra Nos. 677 and 678 (hereinafter to be referred as "suit property No. 1"), each brother having 1/5th undivided share in it. They are also co -tenants of one -half share of another agricultural land comprising in Khasra Nos. 83 and 84 (hereinafter to be referred as the "suit property No. 2"), each brother having 1/5th undivided share in it. (iii) Defendant -appellant -Shri Ram Lal executed a registered release deed dt. 14.7.2006 of his 1/6th share in suit property No. 1 in favour of defendant -appellants -Shri Jwala Prasad and Kishan Lal. Similarly, he also executed a registered release deed on the same day of his share in suit property No. 2 in favour of defendant -appellant Shri Jwala Prasad alone.
(2.) THE plaintiff -respondent filed the suit with the averment that defendant -appellant -Shri Ram Lal agreed to sell his undivided share in both the suit properties in sale consideration of Rs. 1,20,000/ - to plaintiff -respondent and remaining defendant -appellants and after receiving the aforesaid sale consideration from them, executed an agreement to sell on 2.8.2000 and also handed over possession of his share so sold to plaintiff - respondent and remaining defendant -appellants. According to plaintiff -respondent he paid his share of sale consideration of Rs. 30,000/ - in cash to Shri Ram Lal whereas each of the remaining purchasers also paid his respective share of the sale consideration. It was also averred in the plaint that since the date of execution of agreement to sell i.e. 2.8.2000, plaintiff -respondent and remaining defendant -appellants are cultivating the share of suit properties so sold by the defendant -appellant -Shri Ram Lal to them. According to plaintiff -respondent he is purchaser of 1/4th share of 1/5th share of Shri Ram Lal in suit property No. 1 and 1/4th share of 1/5th share in the suit property No. 2 and the defendant -appellant is bound by agreement to sell dt. 2.8.2000 and sell 1/4th share of his total share in both the suit properties to plaintiff -respondent and he is entitled for specific performance of the agreement to sell to that extent. It was also said in the plaint that both the release deeds dt. 14.6.2006 are void, invalid and ineffective to the extent of share so sold by Shri Ram Lal to plaintiff -respondent and they are liable to be declared so. Relief of permanent injunction was also sought in the suit. The defendant -appellants filed a joint written statement and it was contended by them that no agreement to sell dt. 2.8.2000 was ever executed by defendant -appellant -Shri Ram Lal in favour of plaintiff -respondent and remaining defendant -appellants, no sale consideration was ever paid to Shri Ramlal and all the brothers are in joint possession of both the suit properties. It was also averred that as no such agreement to sell was ever executed, both the release deeds are validly executed documents and plaintiff -respondent has no right to challenge them. It was specifically averred that the agreement to sell dt. 2.8.2000 being un -registered and insufficiently stamped is inadmissible in evidence and cannot be acted upon and the suit is not maintainable on such a document.
(3.) THE learned trial Court after hearing both the parties and appreciating and evaluating the evidence available on record concluded as follows: (i) Defendant -appellant -Shri Ram Lal agreed to sell his undivided share in the suit properties to plaintiff -respondent and remaining defendant -appellants on 2.8.2000 in lieu of sale consideration of Rs. 1,20,000/ - and after receiving the same in cash he executed agreement to sell (Ex. 1) on 2.8.2000 and also handed over possession of his undivided share to the purchasers including plaintiff -respondent and since then the plaintiff -respondent is in possession of the share sold by defendant -appellant Shri Ram Lal along with remaining purchasers. Plaintiff -respondent paid his share of sale consideration i.e. Rs. 30,000/ - in cash to defendant -appellant -Shri Ram Lal and he received that amount. (ii) Although, agreement to sell (Ex. 1) is unregistered but in view of proviso to Sec. 49 of Indian Registration Act, it is admissible in evidence and suit for specific performance of agreement to sell is maintainable on it. (iii) Both the release deeds are void, invalid and ineffective to the extent of share sold by defendant -appellant -Shri Ram Lal to plaintiff -respondent vide agreement to sell dt. 2.8.2000 i.e. to the extent of 1/4th share of 1/5th share of Shri Ram Lal in both the suit properties. Consequently, the suit filed by the plaintiff -respondent was decreed vide impugned judgment and decree dt. 26.7.2008. Feeling aggrieved, all the defendant -appellants are before this Court by way of this appeal. It is pertinent to note that: (i) For the purpose of payment of Court fee, the suit was valued at Rs. 30,000/ - and Court fee was accordingly paid for the relief of specific performance of contract but no separate Court fee was paid for the relief of declaration and permanent injunction although objection was specifically taken in the written statement. (ii) Objection regarding insufficiency of stamp duty on agreement to sell (Ex. 1) was specifically taken in the written statement but that objection was neither considered nor decided by the Court below. (iii) Agreement to sell (Ex. 1) was exhibited and admitted in evidence without any objection being taken by defendant -appellants when it was tendered in evidence during the course of trial. (iv) The plaintiff -respondent paid Rs. 880/ - as deficit stamp duty and penalty on Ex. 1 during the course of trial on 8.11.2006.;