IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 63 of 2009 (alongwith Delay Condonation App. No. 10688 of 2009) Smt. Durga Devi W/o late Sri Bhagat Singh R/o Village Jyoli, Patti Chopra, District Nainital (Uttarakhand). ...…………. Appellant / Defendant Versus 1/1. Sayeed Parvez Khursheed 1/2. Sayeed Fasal Shah 1/3. Sayeed Nadeem Khursheed 1/4. Sayeed Fasal Khursheed All are S/o S.K. Ahmed R/o Kapoor Cottage, Tallital, Nainital. 2. Sri Braj Mohan Presently resides at Kapoor Lodge, Tallital, Nainital. ...…………. Respondents / plaintiffs Mr. Rajesh Joshi, Advocate for the appellant. Hon’ble Prafulla C. Pant, J. This is Application No. 10688 of 2009, for condonation of delay in filing the second appeal against the judgment and decree dated 09.07.2009, passed by the first appellate court (Addl. District Judge / I F.T.C., Nainital) in Civil Appeal No. 46 of 1997, whereby the judgment and decree passed by the trial court (Civil Judge (Senior Division), Nainital), in Suit No. 09 of 1990, is affirmed. 2 2) Heard and perused the affidavit accompanying the application. The delay is sufficiently explained in the affidavit. Therefore, the delay condonation application is allowed. Delay is condoned. 3) Also, heard on admission of the second appeal, and perused the impugned judgment and decree dated 09.07.2009, passed by the first appellate court (Addl. District Judge / I F.T.C., Nainital) in Civil Appeal No. 46 of 1997, and the judgment and decree dated 11.07.1997, passed by the trial court (Civil Judge (Senior Division), Nainital), in Suit No. 09 of 1990. 4) The trial court has decreed the suit for specific performance of contract filed by the plaintiff (present respondents). The first appellate court has dismissed the appeal and affirmed the judgment and decree passed by the trial court. The impugned judgments passed by the courts below show that the defendant / appellant executed an agreement of sale on 27.12.1986, to transfer the land measuring 16 Nali 8 Mutthi in Village Jyoli, Patti Chopra, District Nainital, to the original plaintiff Brijesh Khursheed (since deceased). The defendant pleaded in the written statement that agreement was got executed by playing fraud on her. However, both the courts below have given concurrent finding of fact as to the execution of agreement of sale executed by the defendant / appellant in favour of the 3 purchaser (plaintiff). There appears no illegality committed either by the trial court in decreeing the suit for specific performance of contract in favour of the plaintiff, nor is there any illegality in the order passed by the first appellate court. Learned counsel for the appellant submitted that the defendant (appellant) is only co-sharer in the property in suit. This Court is of the view that the defendant / appellant should have no objection in executing the sale deed to the extent of his share, after the agreement was executed in favour of the plaintiff. 5) No substantial question of law appears to have been involved in this appeal. 6) The second appeal is dismissed summarily. (Stay Application No. 10689 of 2009 also stands dismissed). (Prafulla C. Pant, J.) Dt. December 15, 2009. H. Negi