Specific performance

Querist : Anonymous (Querist) 03 January 2012 This query is : Resolved
the suit of specific performance is decided by the court as it is premature suit.
Facts of Case : in year 1980 an agreement to sale was executed between the present plaintiff and father of defendant. the term in said agreement was after the disposal of a suit which was pending in court for partition and possession the sale deed is to be executed within six months. the present plaintiff paid 20000 Rs as earnest money to the defendant father. defendant fatehr died so his son as legal heir is defendant. the present defendant challenge the partly decree passed in the said suit of partition as it is fraud and malafied and as till today he has not received possession of the property, the defendant (who is plaintiff in partition suit )also file an application of withdrawal in the said suit. now plaintiff has filed suit aganist the defendant for specfic performance but court order that as the first suit of partition and possession is pending the suit of plaintiff is premature. but the plaintiff contention is that as partly decree is passed in the said suit and as defendant is challenging the said partition decree and filed withdrawal appln though primafacie his suit appears premature but actual it is not.
can plaintiff should go in appeal and on what grounds?????? pls reply

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Raj Kumar Makkad (Expert) 03 January 2012
It shall be better for you to first obtain the finalization in the matter of partition so there may not remain any reason with the defendant to oppose your suit. You can get the suit for specific performance sine-die and can get the earlier suit of partition decided finally.

Querist : Anonymous (Querist) 04 January 2012
thank you Sir, but still I want to know whether is there any provision in law to file asuit of specific performance anticipating breach of trust or contract. As in my case the defendant had challenged the part decree passed for partition by filing another suit in which he had made me one of the defendant and also file application for withdrawal of suit in which the said part decree is passed. therefore I filed a suit for specific performance anticipating breach of contract. Now court has decided my suit as pre-mature. My query is can I file appeal aganist the said order and on what point it will sustained?

prabhakar singh (Expert) 04 January 2012
"suit for specific performance anticipating breach of contract" DOES NOT DISCLOSE ANY CAUSE OF ACTION. THE COURT'S ORDER IS CORRECT IN MY OPINION.

M/s. Y-not legal services (Expert) 05 January 2012
am also having similar opinion with prabhakar sir..

-tom-

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