Sub: Suit for specific performance
somnathsingh
(Querist) 03 December 2010
This query is : Open
An Agreement of Sale is entered by father and son in favour of tenant’s wife already in possession. Before sale deed is executed by them, son got issued legal notice to the tenant (agreement holder) expressing sole ownership by virtue of will deed executed by his mother (original land lady now expired) in his favour.
The tenant’s filed “Suit for Specific Performance” making Father and Son as Defendant 1 and Defendant 2 depositing the balance sales consideration in bank and filed the bank letter in court. The two sisters of D1 Got implied as D3 and D4 challenging the will.
Rent Control Case: In between the tenant file Rent Control case for depositing the rent since the landlord is in dispute. All the parties contested the case. But after some time the suit is dismissed for default, since the tenant has not pressed the case.
Over ruling the above documents the Original Suit was decreed in favour of Plaintiff (tenant) against D1 and D2 for executing the Sale deed for 50% of the suit property, failing which the court will execute the sale deed. The balance consideration deposit issued by the bank is not marked as exhibit by the plaintiff (tenant’s wife) and the court is silent about it in pronouncing the judgment, but this was clearly mentioned in plaint and was cross examined in evidence. The court also confirmed the balance 50% ownership to sisters by invalidating the alleged will. The sisters are not willing to sell the property.
Aggrieved by the Specific Performance decree, brother preferred an appeal and it is pending and the Appellate court granted interim stay till the disposal of final appeal. Now the stay is vacated.
Their after the tenants wife registered the 50% property of D1 & D2 by the court by depositing the balance sale consideration.
This property is part of the total property in partition suit. Now the partition suit is under compromise.
Now the questions are:
1. When the amount is already deposited in bank and the bank letter is deposited in court. Neither the court nor the party insisted for the same to bring it into record and registered the sale deed as per the lower court order. Is the court erred in this subject.
2. The tenant has filed a rent control case for depositing the rent in rent control, but not traced subsequently. This means is he under default of paying rent right from the date of A/S. As an agreement holder is not the owner of property in one aspect and tenant and his wife are separate party in eyes of law on the other aspect.
3. Is it possible to re-open the RC case dismissed for default and to file the suit for eviction?
4. Is the prospective landlord can withdraw the amount from bank against sale deed execution?
5. The tenant wife prefer no appeal against the order of the lower court either for registering the complete suit property or to for not paying the rent till the disposition of suit.
6. Paying rent till the sale deed is registered is one of the recital in Agreement of Sale.
Please advice.
Regards
Somnath
