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1. The challenge by means of this Regular First Appeal (RFA) filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the Trial Court dated 25.1.2003. By the impugned judgment, the Trial Court decided two suits. Suit No.209/2002 (originally Suit No.728/1982) titled as Ram Kumar & Ors. vs. Mohinder Nath Sharma, was a suit for possession, declaration and recovery of damages of `62,000/- filed by the proposed sellers (the respondents herein) against the proposed buyer (now represented by his legal heirs-the appellants). The second suit was suit No.210/2002 (originally Suit No.817/1982) titled as Mohinder Nath Sharma vs. Ram Kumar & Ors. seeking specific performance of an Agreement to Sell and possession of balance land, filed by the proposed buyer against the proposed sellers. The impugned judgment dismisses the suit of the proposed buyer, Sh.Mohinder Nath Sharma for specific performance and decrees the suit filed by the proposed sellers for possession and damages. For the sake of convenience in this judgment, I will refer to the proposed sellers as the respondents and the proposed buyer as the appellant. The original proposed buyer, Sh. Mohinder Nath Sharma has expired, and he is now represented by his legal heirs as the appellants.

9. The case of the respondents was that under the agreement to sell only `80,000/- was paid and not `1,00,000/- as was written in the agreement to sell and the receipt of the same date. It was pleaded that two self cheques of `10,000/- each were given at the time of agreement to sell, and which were replaced by the two cheques of `10,000/- each on 29.8.1979, and which cheques were admittedly dishonoured and therefore, there was breach of contract on behalf of the appellant. It was also pleaded that the appellant had received the complete possession of 2000 sq. yds., and the appellant was unnecessarily backing out of the agreement to sell by refusing to pay the balance sale consideration and therefore again there was breach of contract on the part of the appellant. It was also pleaded that the appellant was not ready and willing to perform the contract and being guilty of breach of contract, was not entitled to specific performance, and therefore, the suit of the respondents for possession and mesne profits was to be decreed. It was also pleaded that the appellant had not come to the Court with clean hands in his suit for specific performance and therefore was disentitled to the discretionary remedy of specific performance including because the ownership of the respondents of the suit land was wrongly denied by the appellant.

(4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stand on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part."

26. As per Section 12(3)(b), a party to a contract including the buyer can insist on specific performance of a part of the contract by proportionately reducing the consideration to the proportionately reduced area of the land of which ownership will have to be transferred under the agreement to sell. Learned senior counsel for the appellant states that the appellant relinquishes all other claims under the agreement to sell, and which is required of the appellant by virtue of Section 12(3)(b)(ii) of the Specific Relief Act, 1963. Accordingly, by virtue of the relevant part of Section 12(3) of the Specific Relief Act, 1963, specific performance in this case will have to be granted with respect to the area which is in possession of the appellant, being the land of which ownership vests with the respondents, and ownership of which area has to be transferred to the appellant by specific performance of the subject agreement to sell dated 1.6.1979. However, this cannot take place unless it is known as to what is the exact area of the land which is presently in possession of the appellant. The appellant claims there is an area of approximately 1360 sq. yds. with him, plus of course the area under the boundary walls, whereas the respondents on the other hand contend that the appellant has around 1560 sq. yds. of land in his possession.

28. Appeal is therefore accepted. Impugned judgment and decree dismissing the suit of the appellant for specific performance and decreeing the suit of the respondents for possession and mesne profits is set aside. Suit of the respondents for possession, declaration, damages, etc. shall stand dismissed. Suit of the appellant for specific performance shall stand decreed. In order to pass further orders with respect to passing of the exact directions for specific performance, since the area of the land has to be measured, I direct both the parties to file in Court within four weeks an agreed name of an Architect, and who can be appointed to take the exact measurement of the area of the land in possession of the appellant. I am directing the giving of a common name in order to avoid further prolongation of litigation because if an Architect as suggested by one of the party is appointed or even if an independent Architect is appointed, parties may want to file objections even with respect to the measurement, seeing bitterness of the litigation.