SHIV KUMAR SHARMA, J. - (1.) Learned Additional District Judge Alwar vide judgment and decree dated November 11, 1974 decreed plaintiffs suit for specific performance and directed defendants Nos. 1 to 5 to execute sale deed and to effect its registration. The defendants 1 to 5 preferred civil regular first appeal against the said decree. Learned single Judge vide judgment dated August 14, 1986 dismissed the suit against defendants 1,2, 4 and 5 but decreed it only against defendant No. 3, who was directed to execute sale deed for his undivided 1/9 th share. The plaintiff in the instant special appeal has assailed the findings of learned single Judge.
(2.) As per the pleadings of the plaint the plaintiff is a firm registered as a Private Limited Company under the Companies Act, of which Shashi Kant is the Managing Director. There is a plot of land measuring 33,173 Sq. ft. near Station Road in Alwar which is known as Bawari and Bagichi Modiyan, belonging to defendant's ancestors. Defendant No. 1 Niranjan Prasad and defendant No. 2 Against Judgment of single Judge of this Court in Civil Regular First Appeal No. 23 of 1985, D/- 14-8-1986. Vishveshwar Prasad are brothers being sons of Bakhtawar Mai; whereas Ramesh Chand defendant No. 3, Suresh Chand defendant No. 4 and Naresh Chand defendant No. 5 are the sons of Gangadeen Modi (since dead) and who was son of Bakhtawar Mai and brother of defendant Nos. 1 and 2. Defendants were originally residents of Alwar but now they have all shifted from Alwar. Defendant No. 1 was staying in Meerut, whereas defendant No. 2 was staying in Chandigarh and defendant No. 3 in Delhi. Defendant Nos. 4 and 5 were staying in United States of America whereas defendant No. 6 Prabhu Dayal Modi is a close relation. It was further averred that defendant Nos. 1 and 2 have got l/3rd share whereas defendant Nos. 3 to 5 have got 1 /9 share each in the said property. Defendants ultimately agreed to sell their property to the plaintiff for a sum of Rs. 12,000/- and defendant No. 3 has sent a sum of Rs. 500/- as earnest money. Ultimately, Ramesh Chand, defendant No. 3 Niranjan Prasad, defendant No. 1 and Vishveshwar Prasad defendant No. 2 came to Alwar on January 5, 1962 and purchased the stamps for a sum of Rs. 312/-. The sale deed was typed on the stamp paper. Since the Registrar was not available on 6th and 7th being Sunday, the sale deed was to be registered on January 8, 1962 but the defendant left Alwar before 8th January, 1962 and did not get the sale deed registered. Therefore, the plaintiff gave a notice to the defendant Nos. 1 to 3, asking them to get the sale deed registered but since they declined, hence, the plaintiff had filed the present suit on February 6, 1962. The suit proceeded exparte against defendant Nos. 2,3,4 and 5 as they did not file any written statement in spite of due service.
(3.) The defendant No. 1 contested the suit and filed written statement, denying that he had agreed to sell the land in dispute to the plaintiff. It was of course, admitted that he had come to Alwar but only with a view to assess the proper value of the land and that defendant No. 3 was not authorised to act as his Agent as the disputed land was ancestral property. Subsequently, the defendant No. 5 appeared and got the ex parte order set aside and filed the written statement admitting the factum of relationship with other defendants but submitted that the power of attorney given by him in favour of defendant No. 3 was not duly attested and since he had returned to India, it stood automatically cancelled. It has further been asserted that the property was ancestral and two Samadhis of their ancestors were existing in the disputed property and that there was no necessity to sell the ancestral property and that defendant No. 3 had no authority to agree to sell the disputed property.;