Since in both these First Appeals common controversy is involved and as such these Appeals are being decided by this one and common judgment.
Heard Sri Shashinandan, learned Senior Advocate, assisted by Sarvasri Manoj Kumar Singh and Ashutosh Srivastava, learned counsel for the appellants. Respondents are represented by Sri Muralidhar, learned Senior Advocate, assisted by Sarvasri Siddharth Verma, Vivek Verma and R.P. Singh.
These First Appeals, under Section 96 of the Code of Civil Procedure, have been preferred against the judgment and decree dated 31.5.2000, passed by the V Additional District Judge, Varanasi, in Original Suit No. 724 of 1989, Dr. Kailash Chandra Gupta Vs. Mirza Anwar Bakht and others and Original Suit NO. 731 of 1989, Dr. Kailash Chandra Gupta Vs. Swaleha Sultan Begum and others. The subject matter of the dispute is specific performance of Agreement to Sell, alleged to have been registered between the parties.
It emerges from the record that an Original Suit No. 724 of 1989 was filed by the plaintiff-respondents against the defendants for specific performance of the contract of sale dated 22.2.1988, registered on 5.4.1989 and in the alternative refund of Rs. 35,000/= alongwith 24% interest per annum was also sought.
It was alleged by the plaintiff in the said Suit that the vendors, namely, Humaun Sultan Begum, Daughter of Mirza Khurd Bakht and her sisters along with other close relatives including Khursheeda Bakht, Daughter of late Dara Bakht, through their power of attorney, that is, Mirza Anwar Bakht, Resident of UH-55, Varanasi Development Authority Colony, Shivpur, Varanasi, had entered into an agreement to sell the property in dispute situated in Varanasi City, that is, C-19/15-A-2-1, Plot No. 647, Mauja Habibpura, Dehat Amanat, District Varanasi to their neighbours, that is, Dr. Kailash Chandra Gupta and others. The said agreement to sell was drafted and signed on 22.2.1988 and the same was registered in the office of the Sub Registrar on 5.4.1989.
As per the plaintiff, respondent herein, Rs.35,000/= were paid to the vendors as advance and the plaintiff had agreed that at the time of execution of the sale deed, the remaining amount out of Rs.2,50000/= (i.e.,Rs.2,15,000/=), as settled between the parties would be paid to the vendors. Thus, the vendors had received Rs.35,000/=, as part payment out of the total agreed sale consideration and it was agreed that the remaining total amount of Rs.2,15,000/= (out of total sale consideration of Rs.2,50000/=) would be paid at the time of execution of the sale deed of the property. It was stipulated in the Agreement to Sell that the sale deed would be executed within three months, after completing the necessary formalities. When the sale deed was not executed by the 3 vendors, the plaintiff-Dr. Kailash Chandra Gupta, had filed a Suit No. 287 of 1989 on 25.4.1989, seeking therein a permanent injunction restraining the vendors from transferring the property under the Agreement to Sell to any one else. An ad interim order was passed on 25.4.1989, directing the respondents, for not changing the nature and status of the property in dispute and for not alienating the same. However, despite this Suit, sale deed was executed by the vendors in favour of the appellants on 4.9.1989. Another Suit No. 731 of 1989 was also filed by the plaintiff-Dr. Kailash Chandra Gupta in which another interim order was passed on 21.1.1990, directing the appellant-Defendants not to get the property mutated in their name. The Trial court has taken note of the submissions put-forth in the plaint.
The Suit was contested by the vendees before the Trial court. Detailed written statement was filed by the vendees, Defendants, wherein it was pleaded that the allegations are incorrect. The map and boundaries of the property in dispute were not shown correctly. Dr. Kailash Chandra Gupta had paid Rs.20,000/= only in place of Rs.30,000/= as originally agreed. Lateron, a Cheque for Rs.15,000/= was given. The Defendants had pleaded that the agreement dated 19.2.1988 was obtained by Dr. Kailas Chandra Gupta fraudulently, being a neighbour, making an effort to usurp the whole property of Mst. Karimuttinisha Begum, which was devolved upon her legal heirs and legal representatives. The other detailed submissions have also been put-forth before the Trial court, which were taken note of by the Trial court.
It was further submitted that the plaintiff was not entitled for a decree for specific performance as he was not willing and ready to perform his part of the contract. Separate written statement was 4 filed by the Defendant nos. 3 to 8, indicating therein that Defendant Nos. 1 and 2 were not owner of 1/4th Share in House No. C/19/15-A-2-1. In fact, an Agreement to Sell was earlier executed by the property owners in favour of the Defendants on 1.11.1972. The Defendants no. 3 to 8 had discharged their part of the contract and paid whole amount. They were, in fact, occupying the property and are in possession of the property in dispute since 1970 as tenants and now as lawful owners of the property. The property was purchased for a sale consideration of Rs.7 lakhs. They had already paid Rs.25,000/= to the vendors at the time of execution of the Agreement, that is, on 1.11.1972. The Suit was barred by the provisions of Sections 14, 16, 18 and 20 of the Specific Reliefs Act. The plaintiff, Dr. Kailash Chandra Gupta, had examined himself and Arun Kumar Tripathi, Advocate, to prove the Agreement to Sell executed on 19.2.1988. The Defendants had examined Hemchand, Bansudev Motwani, Sujat Khan and Mirza Anwar Bakht, Power of Attorney of the owners of the property in dispute. Several documents were also filed.
The Defendants no. 3 to 8 had submitted that Dr. Kailash Chandra Gupta had tried to confuse the issues. Defendants no. 1 and 2 were not owner or titleholder of House No. C-19/15-A-2-1. The Defendants no. 1 and 2 had never executed any Agreement to Sell in respect of the Suit property nor they were entitled to do so. They never met the plaintiff nor entered into any Agreement to Sell with him. In fact, Bansdev Motwani, the Defendant no. 8, the father of Defendants no. 3 to 7, was a tenant of the Suit property. The Defendants no. 3 to 8 had expressed their willingness to purchase the whole house and the appurtenant land for Rs. 7 Lakh. They had paid Rs.25,000/= as advance amount and a written Agreement to Sell was executed on 1.11.1972. The Defendants no.
1and 2 had executed a sale deed in favour of Defendants no. 3 to 8 on 6th September, 1989 in furtherance of the said Agreement to Sell dated 1.11.1972 in the office of the Sub Registrar. Bansdev Motwani was in occupation of the property since 1970 and was carrying out his business of fire works from the said property. The Defendants no. 1 and 2 in the Suit, before the Trial court, had no right to execute the sale deed in respect of the property in furtherance of the latter agreement alleged to have been executed on 5.4.1989. The Defendants no. 3 to 8 were bonafide purchasers of the property in dispute having paid an advance of Rs.25,000/- in the year 1972. They had already paid the total amount of Rs.7 lakhs to the vendors, the agreed sale consideration, for the said property purchased by them.
The plaintiff, Dr. Kailash Chandra Gupta, in a Criminal Case being Case No. 937 of 1989, under Sections 420/120, I.P.C., had himself admitted that the Agreement dated 19.2.1989 was an outcome of fraud. By filing the Suit, he was seeking enforcement of the terms and conditions in the agreement, that is, alleged agreement dated 19.2.1988, obtained fraudulently. The said Suit has, thus, been filed with an ulterior motive in order to create unnecessary confusions. In fact, Dr. Kailash Chandra Gupta knew about the Satta (Ikrarnama), that is, the Agreement to Sell the property in dispute executed in favour of the Defendants no. 3 to 8. Since his house was adjacent to the property in dispute, therefore, he had knowledge about the existence of the Agreement to Sell executed on 1.11.1972. In the aforesaid Criminal case, Dr. Kailash Chandra Gupta had conceded that there existed an Agreement to Sell dated 1.11.1972 and that the the property in dispute was sold to the Defendants no. 3 to 8. There were other shareholder, but they were not impleaded as parties.
It has been canvassed by the learned counsel for the appellants that the learned Trial court has answered Issue nos. 5, 6, 7, 9, 10, 11 and 13 in negative against the Defendants. Issue nos. 1, 2 3 and 12 were decided in affirmative in favour of the plaintiff. Issue nos. 4 and 14 were not dealt with in detail and the learned Trial court has held that no Satta (Ikrarnama) or Agreement to Sell the property was executed in the year 1972. No receipt was written on 10.10.1975. The submissions of the Defendants were found to incredible. Averments that Rs.25,000/= were paid on 1.11.1972 and Rs.25,000/= were again paid to the Defendants no. 1 and 2 in the year 1975 were disbelieved by the Trial court. The plaintiff, Dr. Kailash Chandra Gupta, was held to be entitled for getting the sale deed executed in respect of the property in dispute executed in his favour.
Sri Manoj Kumar Singh, learned counsel for the appellants, has made detailed submissions assailing the findings recorded by the Trial court on various issues. According to him, findings of the Trial court on the Issue nos. 1 and 2 are vitiated as the alleged Agreement to Sell of 19.2.1988 said to have been executed by Smt. Saleha Sultan Begum, through her power of attorney holder, Dawar Bakht, Defendants no. 1 and 2 respectively. Surprisingly, the power of attorney of Saleha Sultan Begum was not placed on record of the Suit. No such power of attorney, as has been alleged in Paragraph 37 of the plaint, was ever executed. The execution of the agreement itself as well as the share in the property to the extent of 1/4th was also categorically denied. The names of cosharers was incorrectly mentioned. The agreement did not disclose as to how the property came to be settled with the Defendants no. 1 and 2 and how they could enter into any such agreement to sell the said property when an earlier Agreement to Sell already existed. In fact 7 the execution of the Agreement to Sell was wholly denied by the Defendants no.1 and 2.
The Agreement to Sell is stated to have been registered on 4.4.1989. It necessarily means that it was presented on that date for its registration. The recital of the Agreement, i.e., Clause 2 clearly provides that Rs.20,000/= only would be paid to the seller out of which Rs.10,000/= by Account Payee Cheque only in the presence of witnesses before the Sub-Registrar, Varanasi and Rs.2,30,000/=, the remaining balance of the total sale consideration, at the time of execution of the sale deed. There is absolutely no finding by the Trial court as to when Rs.10,000/=, in cash, was paid, or for that matter, whether the Cheque of Rs.10,000/= was paid before the Sub-Registrar. In fact, it was the specific case of the Defendant no. 2 in Paragraphs 25, 26 and 28 of the written statement that a sum of Rs.10,000/= was received by a Cheque on 19.2.1989 in respect of the Agreement dated 28/30.11.1987 relating to a piece of 14 Biswa of open land agreed to be sold to Smt. Asha Gupta and Rohit Gupta, the wife and son of Plaintiff, Dr. Kailash Chandra Gupta whereas the subject matter of the present Agreement dated 19.2.1988 is not the open land. Thus, the plaintiff respondent has, in fact, failed to prove the agreement dated 19.2.1988.
Sri Manoj Kumar Singh, learned counsel for the appellants, has further submitted that the compromise between the plaintiff and Defendants no. 1 and 2 were wholly invalid. The alleged compromise deeds, which were filed in the lower Court and the one filed alongwith the counter affidavit appeared to be different. This compromise has also been denied by Dawar Bakht, Defendant no. 2 in his oral deposition as DW-1. The appellant-Defendants, were not 8 party to the said compromise. The Issue no.6 has been decided on the strength of this compromise. The findings recorded are, thus, unfounded and without any basis. He has relied upon a judgment of the Hon'ble Apex Court as reported in 2008 (8) SCC 348, Arjan Singh Vs. Punit Ahluwalia and others in support of his submission.
It was further submitted by the learned counsel for the appellants that Issue nos. 5, 7, 9, 10, 11 and 13 were decided by the Trial court without recording any reason and without assigning any proper and detailed findings. The Trial court has dealt with the matter in a very casual and cursory manner. There was a Suit seeking specific performance of a contract between the parties. The Defendants no. 1 and 2 had categorically submitted that they did not have 1/4th share in the property in dispute and this fact has not been disputed by the plaintiff in his oral deposition. There were 16 other cosharers besides Defendants no. 1 and 2. The appellants had pleaded and brought on record that all the other co-owners had executed sale deed in their favour. These co-owners were liable to be impleaded in the Suit. This having not been done in the present case, therefore, the Suit was liable to be dismissed on the ground of non-joinder of the parties. Learned counsel for the appellant- defendants has relied upon the judgment of the Hon'ble Apex Court as reported in Prabodh Verma and others Vs. State of U.P. and others, 1984 (4) SCC 251, Ram Rao and others Vs. All India Backward Classes Bank Employees Welfare Association, (2004) 2 SCC 1976 and (2004) 3 AWC 2182 (DB) Allahabad and AIR 1998 Cal 252 in support of his submissions.
Learned counsel for the appellants has also submitted that while deciding Issue no.3, the Trial court had not taken note of the 9 fact that the plaintiff was neither ready nor willing to perform his part of the contract. Reliance was placed that agreement dated 19.2.1988 was registered on 4.4.1989 and the Suit was filed on 29.10.1989, but there was no notice placed on record requiring the Defendants no. 1 and 2 to execute the sale deed as per the alleged agreement dated 19.2.1988. As per plaintiff's case the publication in the News Paper was carried out on 13.4.1989 whereas admittedly according to plaintiff's case Rs. 10,000/= as earnest money was paid on 4.4.1989 before the Sub Registrar, in that event what was the occasion to get the notice published on 13.4.1989, just after nine days of alleged publication of notice, without awaiting for a reasonable period.
In the Criminal Case, the plaintiff, had taken a plea that the agreement was a result of fraud and cheating on the part of the Defendants no. 1 and 2 and at the same time, he had filed a Suit to enforce that very agreement, which admitted by the plaintiff, Dr. Kailash Chandra Gupta, was obtained on perpetuating fraud and cheating. Learned counsel for the appellants has placed reliance on the judgments of the Hon'ble Apex Court as reported in 2002 (9) SCC 582 and 200(6) SCC 685, Pushparani S. Sundaram and others Vs. Pauline Manomani James (Deceased) and others in support of his submissions.
He has lastly submitted that the findings recorded by the learned Trial court are perverse, arrived at on misreading of evidence and as such the Suits deserve to be dismissed.
Sri Muralidhar, learned Senior Advocate, appearing for the plaintiff-respondents, has led the Court to the chronology of events. He submits that these two First Appeals arise out of two Suits, that 10 is, Suit Nos. 724 of 1989 and 731 of 1989, both filed by the same plaintiff, Dr. Kailash Chandra Gupta. In both the Suits, the agreement was executed in favour of Dr. Kailash Chandra Gupta in respect of 1/4th Share in the disputed property. One agreement was executed by Anwar Bakht and Khrushid Jahan Begum on 22.2.1988, which was registered on 5.4.1989 and the other agreement was executed by Saleha Sultam Begum and Dawar Bakht on 19.2.1988 and was registered on 4.4.1989. The registration of both the agreements was established before the Trial court.
Learned Senior Counsel has submitted that the delay of about 13 and half months in the registration was due to the back log in the Registration Office at Varanasi and the copies of the registration were prepared manually. The vendors in each agreement had admitted that they had 1/4th share in the property. The subsequent purchasers, that is, Defendants no. 3 to 8, who got the sale deed executed on 4/6th September, 1989, cannot claim the same property for sale of which an agreement was registered and executed between the vendor and the vendee earlier to the sale deed. The terms and conditions indicated in the registered agreement would be binding on the parties. The registration was a condition precedent as provided in U.P. Act No. 57 of 1976.
Sri Muralidhar, learned Senior Counsel, has made detailed submissions taking the Court to the pleadings of the parties, the findings recorded by the Trial court and other materials. According to him, Defendants no. 3 to 8, appellants herein, had purchased the property through sale deed dated 4/6th September, 1989, only before 25 days before filing of both the Suits by plaintiff, Dr. Kailash Chandra Gupta on 29.9.1989. The property in dispute was having an area of 2111 Sq. Yards. There was a Baradari and land 11 appurtenant to it. The plea of Defendants no. 3 to 8, appellant herein, that there existed an earlier agreement dated 1.11.1972 is incorrect, rather frivolous. In the sale deed, the recital was that on 10.10.1975, an agreement had taken place and Rs.25,000/= was said to have been paid as earnest money. The only evidence, which was filed, before the court, was a receipt of Rs.25,000/= executed on behalf of one of the owners. This receipt had no value in the year 1989, after the registration of the agreement became compulsory with effect from 1.1.1977. Both these documents have been rightly held by the Trial court to be forged. The arguments of the learned counsel for the appellants supporting the sale deed dated 4/6th September, 1989 in preference to registered agreement are wholly misconceived.
As far as arguments of learned counsel for the appellants are concerned, in the present case, one or more cosharers were fully entitled to transfer their undivided share to any one who would step into their shoes. In respect of findings of Issue nos. 1 and 2, learned Senior Advocate, appearing for the plaintiff-respondents, has submitted that there is no reference to any specific evidence which would discredit the agreement relied upon by the plaintiff. Moreover, this contention lost its credibility, after the compromise dated 7.4.1993 and another compromise dated 10.2.1992, were filed in the Suit pending before the Trial court. These documents were placed on record after filing of the Suit. The submissions in respect of Issue nos. 1 and 2 are wholly misconceived and are not tenable.
In respect of finding regarding sale agreement and Point No.2, Sri Muralidhar, learned Senior Counsel, appearing for the plaintiff- respondents, has drawn attention of the Court that the 12 compromises were entered into by the 'Mukhtaream', Defendant, who has executed agreement on his own behalf and on behalf of Khrushida Sultan Begum and Saleha Sultan Begum. Neither Saleha Sultan Begum nor Khurshida Sultan Begum appeared to pursue the cases nor raised any objection. The silence of these ladies inspite of the service about the claim of the co-defendant's action as 'Mukhtaream' supports the version of the plaintiff-respondents in respect of the compromise. He has submitted that judgment of the Hon'ble Apex Court as reported in (2008) 8 SCC 348 is not applicable in the facts and circumstances of the present case. The case law relied upon by the learned counsel for the appellants has no bearing bearing on the present case.
The criticism of findings on Issue nos. 4, 5, 6, 9, 10 and 11 of the appellants' counsel is vague. No reasons have been indicated as to why discretion to grant specific performance should not have been exercised in the present set of circumstances. No such pleas were taken in the written statement. It was demonstrated before the Trial court that the plaintiff was ready and willing to perform his obligation as has been spelt out in the contract. The plaintiff had filed first Suit for injunction against the vendors, restraining them from transferring the property to any one else and got a notice published in the Daily News Paper dated 13.4.1989.
The conditions stipulated in the agreement were proper that the vendor was required to seek clearance from Ceiling and Income Tax Department authorities within the time stipulated in the contract. These conditions are not contingents to be filled by the vendor, but promise. These formalities have to be complied with by the vendor. Learned Senior Counsel has supported the findings recorded by the Trial court in respect of Issue nos. 5, 6, 7, 9 and 13
13. As far as absence of finding regarding knowledge of the appellants about the Agreement to Sell is concerned, much stress has been laid by Sri Muralidhar, learned Senior Counsel, appearing for the plaintiff-respondents, that the two agreements were registered on 4.4.1989 and 5.4.1989 and as such the knowledge to the subsequent purchaser is presumed. In view of this, appellants' sale deed dated 4/6th September, 1989 cannot survive on the basis of appellants being bonafide purchasers. No relief of partition or possession of the property was claimed by the plaintiff-respondents under Section 22(2) of the Specific Relief Act in the Suit. They were simply seeking specific performance to sell 1/4th share in the property. The points raised by the appellants' counsel are misconceived, rather meaningless. He summed up that the First Appeals deserve to be dismissed with costs.
Heard learned counsel for the parties and carefully gone through the materials available on record.
The V Additional District Judge, Varanasi, has rendered a judgment and decree on 31.5.2000 by which the Suit for specific performance was decreed by the said court giving cause of action to the appellants to file these Appeals. Various documents were produced by the parties in support of their respective claims, the details of which finds place in the judgment of the Trial court. Following 14 issues were framed by the Trial court, while deciding the Suit:-
"1.Whether the Defendant Nos. 1 & 2 executed the Agreement to Sell the disputed property for Rs.2,50000/-
vide Agreement dated 22.2.1988, registered on 5.4.1989 14 after accepting a sum of Rs.30,000/-?
2.Whether the Defendants obtained a sum of Rs.5,000/- from the plaintiff on 22.7.1988 by Cheque No.681009 of State Bank of India as advance?
3.Whether the plaintiff is ready and willing to perform his part of the contract and execute the sale deed?
4.Whether the Agreement to Sell dated 22.2.1988 was a result of fraud? Its effect?
5.Whether the Agreement to Sell dated 22.2.1988 cannot be executed as stated in Para 17 of the written statement of the Defendant No.1?
6.Whether the Defendant No.1 is not a constituted attorney of Defendant No.2 and whether the Defendant No. 1 has a right to execute the Agreement to Sell as stated in Para 19 of the written statement? Its effect?
7.Whether the Defendant has not received a sum of Rs.30,000/=? Its effect?
8.Whether the Suit is barred by Section 331 of the U.P. Zamindari Abolition & Land Reforms Act?
9.Whether the Suit is barred by the provisions of the Specific Relief Act?
10.Whether the Suit is barred by Order 2, Rule 2, C.P.C?
11.Whether the Suit is barred by mis-joinder and non- joinder of the parties?
12.Whether the plaintiff is a bonafide purchasers for consideration of the disputed property without notice?
13.Whether the Agreement to Sell dated 1.11.1972 was executed in favour of Bashudeo as stated in Para 22 of the written statement of Defendant Nos. 3 to 8? Its effect?
14. Relief sought for?"
A perusal of the impugned judgment of the Trial court and materials available on record revealed that the plaintiff-respondents had, in fact, failed to prove execution of the alleged Agreement to Sell dated 19.2.1988 properly. Several contradictions were found in the pleadings of the plaintiff-respondents and in the oral statements. There was no admission of the plaintiff in his oral statement regarding payment of Rs.20,000/= in terms of the alleged agreement. The above payment does not appear to be in consonance with the terms of alleged agreement. Even, there appears to be material discrepancies in the statement of Arun Kumar Tripathi, who said to have remained present, while execution of the agreement was being carried out. It is not clear as to when the registration of agreement took place. This witness was not clear as to when the alleged Agreement to Sell took place, whether on 4.4.1989 or on 19.2.1988. He also did not know Dawar Bakht, the author of the alleged agreement. It was stated by Arun Kumar Tripathi , PW2, that he had done no legal work and prepared any agreement for the said Dawar Bakht. However, lateron he had admitted that he has been counsel of Dawar Bakht in one or two cases. The Typist and scriber of the agreement were not examined. It is noteworthy that Dawar Bakh, Defendant no.2, in his oral statement, had denied execution of the alleged agreement. This Court has noted that Issue no.6 has been decided on the basis of unfounded and unproved premises.
This Court has carefully gone through the findings recorded by the Trial court while dealing with the Issue nos. 5, 7, 9, 10, 11 and
13. There is sufficient force in the submissions of Sri Manoj Kumar Singh, learned counsel for the appellants, that a court trying a Suit for specific performance of a contract is required to decide the 16 respective claims of the parties on the basis of appraisal of evidence adduced and the materials on record. In the present case, the Trial court has dealt with the issues in very casual and summary manner. The Trial court appears to have acted with a pre-determined mind and pre-judging the issues. The findings have been recorded in telegraphic language without dealing with the submissions put-forth by the contesting parties and without considering the materials brought before it. It was a material issue, whether a person alleged to have only 1/4th share in the property, can enter into an agreement for disposing of the whole property or a property in which he does not have any title or share. The Suit for specific performance would not lie against a person, who did not have any lawful title in the suit property. It is noteworthy that there were 16 co-owners of the property and as such in this factual matrix, the learned Trial court would have insisted that all the persons, who were going to be affected by any judgment and decree to be passed by the court must have been before it, impleaded as parties to the case. (Vide judgments in the cases of Prabodh Verma and others Vs. State of U.P. and others, 1984 (4) SCC 251, Ram Rao and others Vs. All India Backward Classes Bank Employees Welfare Association, (2004) 2 SCC 1976 and (2004) 3 AWC 2182 (DB) Allahabad). The judgment and decree of the learned Trial court suffers from this infirmity.
The Issue no. 3 has not been dealt with properly. A person, who has filed a Suit for specific performance of a contract, must satisfy the ingredients of Section 16(C) of the Specific Relief Act, such as, he was ready and willing to perform his part of contract. The learned Trial court, in the present case, has not recorded any finding as to when first notice, communication or letter was sent to the Defendants, parties to the alleged agreement, requiring them to 17 comply with their part of the contract or perform their part of the contract as required by Section 16 (C) of the Specific Relief Act. No date, place and time was indicated to the contracting party to come and execute the sale deed or whether the plaintiff was ready with the entire sale consideration as agreed between the parties. The plaintiff-respondent could only demonstrate before the Trial court that he gave Rs.10,000/= to Dawar Bakht as earnest money. This amount is not in consonance with the terms and conditions spelt out in the agreement dated 19.2.1988. The Trial court ought to have recorded reasons and dealt with this issue in detail.
The alleged agreement dated 19.2.1988 stipulated several conditions and obligations to be discharged within three months. It was also indicated that if the actual physical possession of the property, agreed to be sold, was not handed-over, the plaintiff- respondent would have a right to rescind the agreement and demand back the earnest money with interest. In the present case, the appellants have demonstrated that the property, which was the subject matter of the alleged agreement, was also owned by the 16 other co-owners. The appellants were in possession of the said property since 1970, initially as its tenants and lateron purchased the same by way of a sale deed dated 4/6th September, 1989. This sale deed was validly and legally executed by all the 18 co-owners, after receiving agreed sale consideration amounting to Rs.7 Lakhs.
Learned counsel for the appellants has drawn attention of the Court that the plaintiff-respondent, Dr. Kailash Chandra Gupta, claimed to have paid Rs.2.50 Lakhs only as sale consideration, while the appllant-Defendants no. 3 to 8 had paid Rs. 7 Lakhs for the same property, as agreed sale consideration, to the vendors. Thus, they paid higher amount for purchase of the same property in 18 dispute. The law is well settled that a plaintiff must succeed or fail on his own case and he cannot take advantage of other party's case to get a decree in his favour. The Trial court has not even returned a finding that the vendors were owners of the property to the extent of 1/4th share as stated in the alleged agreement and yet it has proceeded to decree the Suit for enforcement of the agreement. On this issue, the appellants' case is covered by the judgments reported in (2008) 9 SCC 527, Union Bank of India v. Prabhakaran Vijaya Kumar and ohers and 1998(4) SCC 539, Punjab Urban Planning & Development Authority Vs. Shiv Saraswati Iron & Steel Re-Rolling Mills, relied upon by the learned counsel for the appellants.
In the present case, the appellants have established that they were bonafide purchasers of the property in dispute. Specific performance of the agreement could not have been enforced against them. The Issue nos. 4 and 14 have been dealt with in a summary manner. The court below ought to have taken note of the factum of the agreement dated 1.11.1972. The testimony of DW-1, DW-2 and DW-4 was completely ignored by the learned Trial court.
Sri Manoj Kumar Singh, learned counsel for the appellants, has led the Court to Dr. Kailash Chandra Gupta's oral deposition recorded in Suit No. 724 of 1989 (Subject matter of First Appeal No. 776 of 2000) to demonstrate that he had knowledge of existence and execution of agreement dated 1.11.1972. In view of this, the learned Trial court has erred in holding that the agreement dated 1.11.1972 and the receipt dated 10.10.1975 were fabricated and do not exist. The appellants appear to be bonafide purchasers for the value. The appellants had paid whole sale consideration without any notice and they were already in possession of the property in 19 dispute since 1970. These material facts ought to have been dealt with while returning the findings.
Since the appellants were in possession of the property in dispute, therefore, it cannot be said that the plaintiff-Respondent could not have notice of the Agreement to Sell and part performance thereof. Even the plaintiff-respondent never questioned basis of appellants' possession over the property in dispute nor given them any notice. As has been demonstrated by Sri Manoj Kumar Singh, learned counsel for the appellants, the plaintiff, P.W.-1, in his deposition has admitted that he never asked any thing from the appellants about their possession or nature of possession over the property in dispute or sought any information from them before entering into the agreement to sell with Defendants no. 1 and 2. This submission of learned counsel for the appellants finds strength from the case laws reported in AIR 1977 Alld. 328, AIR 1978 SC 1094, AIR 1971 Alld. 189 and AIR 1976 Orissa 113.
The Suit was also barred by Section 22(2) of the Specific Performance Act and Order 2, Rule 2 of Code of Civil Procedure. The Trial court has not dealt with specific pleadings and objections raised by the appellants that there were other co-owners of the property in dispute and no partition between the co-owners in regard to property in dispute had ever taken place. In such circumstances, there is substance in the submissions of learned counsel for the appellants that the Suit is barred by Section 22(2) of the Specific Performance Act and Order 2, Rule 2 of the Code of Civil Procedure. (Vide Judgements reported in 1982 (1) SCC 525).
Thus, in view of the discussions made above, this Court is of 20 the view that the impugned judgment and decree of the learned Trial court is unjust, illegal and improper. It suffers from patent errors of law and fact. No case was made out before the Trial court seeking specific performance of the contract by the plaintiff. The plaintiff-respondents had utterly failed even to identify the shares of the alleged vendors, who had entered into an agreement with the plaintiff-Dr. Kailash Chandra Gupta on 4.4.1989 and 5.4.1989. Thus, these agreements were not enforceable. Accordingly, both the First Appeals are allowed and the impugned judgment and decree of the Trial court is set aside. Both the Suits are liable to be dismissed and are accordingly dismissed.
No order as to costs.
22.1.2010 bgs/-