IMPORTANT POINT
Unless the vendor has an alienable right in a property, any agreement to sell the same cannot be enforced.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Challenge in this appeal is by the defendant No. 1 who was the respondent No.1 in the Second appeal filed by the respondents 1, 2 & 3. The second appeal filed in terms of Section 100 of the Code of Civil Procedure, 1973 ( in short the ‘Code’) was allowed by the High Court by the impugned judgment.

2. The background facts in a nutshell are as follows :

OS No. 953 of 1984 on the file of the Second Additional Judge, City Civil Court, Hyderabad was filed by one B. Venkatachalam, the husband of the respondent No.1 and father of respondents 2&3. During pendency of the suit, the said Venkatachalam died and his legal representatives were brought on record.

The suit was filed by the plaintiffs for the specific performance of agreements of sale (Ex.A-1 and A-4) by passing a decree in favour of the plaintiffs, to convey the plaint schedule property in favour of the plaintiffs by executing a proper sale deed, and if the specific performance of the suit contract is not possible, to repay an amount of Rs.22,475.30 received by the defendant towards the sale consideration with interest thereon at 12% per annum from the date of suit till the date of realization, and to deliver vacant possession of the plaint schedule property to the plaintiffs.

According to plaintiff, the 2nd defendant allotted the plaint schedule house bearing No.SRT 374 situated in the Industrial Housing Colony, Sanathnagar to the 1st defendant in 1962 under the Subsidised Industrial Housing Scheme. The 1st defendant, who was working as helper in the Engineering Industrial Corporation, was in occupation of the suit house as tenant since 1962. In 1968, the 1st defendant leased out the major portion of the house to the plaintiff, and the 1st defendant was residing in the kitchen room. The 1st defendant offered to sell the suit house, and the plaintiff agreed to purchase the same for a consideration of Rs.13,000/-, and accordingly, they entered into an agreement of sale dated 8.2.1976 (Ex.A-1) and pursuant to the said agreement of sale, an amount of Rs.3,000/- was paid by the plaintiff to the defendant. As per Ex. A-1, the time fixed for concluding the said contract was 6 years; and the balance was agreed to be paid before the expiration of the time fixed for concluding the contract. As the said agreement was not concluded, the same was ratified by another agreement of sale dated 16.7.1976 (Ex.A-4). By that date, the 1st defendant had already received an amount of Rs.6,200/- towards earnest money, and again five years’ period was fixed for completion of the concluded contract. As per the terms of Ex.A-4, the original plaintiff has to pay the remaining instalments of the hire-purchase amount due to the Commissioner of Labour apart from the agreed sale consideration of Rs.13,000/- in respect of the suit schedule house. The plaintiff, being a tenant even prior to the contract of sale, is in possession of the suit house as the owner under the part performance of the said contract of sale. It is the case of the plaintiff that the 1st defendant only paid an amount of Rs.1,696.55 in respect of the hire purchase deposit on 25.2.1972. Except the said amount, the 1st defendant has not paid any amount towards the installments. The plaintiff not only paid back the said amount Rs.1,692.55 to the 1st defendant on the next day, but also paid the further installments amount of Rs.9,475.30 on 7.6.1982 towards the full discharge of the hire purchase amount in respect of the suit schedule house on behalf of the 1st defendant in discharge of all installments. Though the 1st defendant had to vacate the kitchen portion, which was under his occupation, and deliver vacant possession to the plaintiff as per the terms of the agreement of sale (Ex.A-4), he has not done so. As per the agreement of sale (Ex.A-4), the suit house was allotted to the 1st defendant in 1962 and since then, the 1st defendant was in possession of the suit house, and therefore, the 1st defen