Chhajju Ram vs Lachhman Singh
1986 Latest Caselaw 340 Del

JUDGMENT

S.S. Chadha, J.

(1) The appellant filed a suit claiming specific performance of the agreement of sale dated November 1, 1965 executed by respondent No. I in favor of the appellant Respondent No 2 was imp leaded as a party in the suit as he was recorded as co-owner of Khasra No. 489/421, Village Humayun Pur out of which respondent No. I is alleged to have agreed to sell a plot of land. Toe suit was dismissed by t:ie trial Court and the first appeal was also dismissed. The Courts below held that the agreement of sale, Ex. P-2 dated November 1, 1965 was an ambiguous document and, therefore, specific performance was refused. It was further held that the plot agreed to be sold by respondent No. I was jointly owned by him and respondent No. 2 and so no decree for possession by way of specific performance could be granted. This regular second appeal is directed against the judgment and decree of the first appellate court upholding the judgment and decree of the trial Court.

(2) The following issues were framed by the trial Court : "1. Whether the agreement in dispute is ambiguous and cannot be specifically enforced ? Opd 2. Whether suit for specific performance is not competent as alleged in para no. 3 of preliminary objection of the written statement of defendant No. 1 ? O.P.D. 3. Is the agreement sufficiently stamped and if not to what effect ? O.P.P. 4. Whether defendants no. I and 2 are joint owners of the property in dispute as pleaded and if so to what effect O.P.D. 5. Whether the plaintiff is entitled to specific performance of the agreement in question ? O.P.P. 6. Whether the plaintiff has performed his part of the contract and the defendant has committed its breach ? O.P.P. 7. Relief."

The trial Court decided issue Nos. 3 and 4 in favor of the appellant and issue No. 6 as redundant. The findings on issues 1, 2 and 5 are against the appellant and these findings have been questioned before me

(3) The question of law raised in this second appeal is the construction of the agreement of sale. Ex. P-2. Admittedly, respondent No. I is the recorded owner to 1/2 of khasra No. 489/421 of village Humayun Pur, Delhi measuring 1 bigha 19 biswas and Respondent No. 2 recorded as co-owner of the other half. The agreement. Ex P-2 does not give the total area of the plot to be sold or the total consideration. It only records toe agreement of sale between Lachhman Singh. respondent No. 1 and Chhajju Ram, appellant, for a plot of land at the rate of Rs. 28.00 per sq. yd. It, however, records the boundaries of the plot agreed to be sold allows : "1.On Northern Side-the plot of Raghu Nath. 2. On Eastern side a Gali. 3. On Southern side-a Gali which meets the main lane after going from the Eastern side of Shivji Mandir. 4. On Western side-Mangat Ram etc."

There is further agreement by respondent No. 1 that for the plot agreed to be sold, he will leave 10' wide gali which will, after going from the Eastern side of Shivji Mandir, meet the main gali, There is a further writing on this agreement of sale by respondent No. 1 when he acknowledged the receipt of B sum of Rs. 100.00 . The site plan is drawn. It further records an agreement that respondent No. I will leave a gali by the side of the Mandir and separating the plots of Sardara Singh and Labh Singh and which gali will meet there. The site plan drawn gives two plots mentioned in the name of Lachhman Singh separated by the passage/gali. A combined reading of the boundaries given in Ex. P-2 leaves no doubt in my mind that the agreement of sale related to one plot of an area of about 24/25 sq. yds. The appellant has filed the plan. Ex. P-1 in which two plots of land are shown. The area of the two plots is about 197 sq yds. The agreement of sale, Ex. P-2 specifically records the agreement of sale with respect to one KIT'A ARAZl i.e. one plot. The boundaries on the Southern side is mentioned that of a gali which goes from the Eastern side of the Mandir and then meets the main gali. This description is the clinching recital in the agreement about the identity of the plot agreed to be sold. The further writing on Ex. P-2 at the time of recording the receipt of Rs. 100.00 is that the rasta would be meeting the gali on the Eastern side of the Mandir and then separating the plots of Sardara Singh and Labh Singh to enable them to have an access to the main road. The Rasta has been shown in the sketch plan and is on the Southern side of the small plot of 25 sq. yds. The agreement is not disputed by respondent No. I and in fact in the written statement, it is admitted that only 25 sq yds. was agreed to be sold, to the appellant under the agreement. Ex. P-2. There is also no dispute that the plot of land was out of Khasra No. 489/421 village Humayun Pur. I, therefore, set aside the findings of the trial Court as well as the Appellate Court holding that the agreement of sale. Ex. P-2 dated November 1, 1965 is an ambiguous document.

(4) The other finding of the Courts below is that the plot agreed to be sold by respondent No I was jointly owned by him and respondent No. 2 and so no decree for possession by way of specific performance could be granted. In para 2 of the plaint, the appellant made a specific allegation that by private partition between the defendants inter se, the land in dispute has fallen to the share of defendant No I who is in occupation of the same as an owner. In the written statement, defendant .No. 1 denied this averment and stated that the land is a joint properly and has never been partitioned inter se the defendants. Similar is the averment of defendant No. 2. Defendant No. I in the witness box admits that an agreement was entered into between the appellant and respondent No. 1 regarding the smaller plot measuring about 24/25 sq. yds. and that the bigger plot fell in the share of defendant No. 2 after partition. Defendant No 2 has not entered in the witness box. The appellant as his own witness has made a categorical statement that the property of defendants I and 2 had been partitioned and the Khasra No. 489/421 has fallen to the sole share of Lachhman who is in occupation of the property. No cross-examination is directed in that regard. It is, therefore, clearly established on the record that respondent No. 1 is competent to transfer and hand over the possession of the plot of about 25 sq. yds.

(5) Nothing has been brought on the record or during the course of tbe arguments as to why the appellant is not entitled to the specific performance of the agreement of sals. The appellant has expressed his readiness and willingness to complete the agreement at all material times. 1. therefore, set aside the findings on issues 1, 2 and 5 and hold all of them in favor of the appellant

(6) The appellant is hereby granted a decree for specific performance of the agreement of sale dated November I, 1965with respect to the plot of land measuring about 25 sq yds. as given in the agreement, Ex, P-2as interpreted by this Court. The respondents Will further perform the agreement in entirety by leaving the passage of 10' as agreed upon. Let the balance of the sals consideration be deposited in the trial Court within one month from today. Respondent No. 1 shall execute the sale-deed within one month thereafter failing which the Court shall execute the sale-deed in accordance with law. The appellant is also awarded costs of the suit throughout against respondent No. 1.