Oral Judgment: D.K. Deshmukh, J.

1. By this appeal, the appellants who are original plaintiffs challenge the judgment and decree dated 2nd July 2004 passed by the learned Single Judge of this Court in L.C. suit No.37 of 1980. The plaintiffs had filed the suit seeking a decree of specific performance of the agreement of sale of a flat dated 27th February 1977. The agreement was entered into between plaintiffs and defendant No.1. Admittedly, defendant No.1 is the owner of the land bearing No.33, admeasuring 492 sq. yards, bearing C.S. No.6/509, situated at Mahim, Mumbai. The defendant No.1 was constructing a multistoreyed building on the land. He entered into an agreement dated 27th February 1977 with the original plaintiff to sell flat No.7 to him. The total agreed consideration was Rs.55,000/-and the plaintiff paid full amount of consideration to the defendant No.1. According to the plaintiff, the defendant No.1 could not develop the property himself. Therefore, he entered into an agreement with the defendant No.2 dated 2nd July 1979 for completing the construction. The defendant No.2 however was obliged to deliver possession of the flat to the persons with whom the defendant No.1 had agreed to give possession of respective flats unless the issue is settled with the flat purchasers. According to the plaintiff, the defendant No.2 was obliged to deliver possession of flat No.7 which was renumbered as flat No.14. According to the plaintiff, though the defendant No.1 was willing to deliver possession to the plaintiff, he could not do so because of operation of injunction order passed in the suit filed by the defendant No.2. The plaintiff was therefore seeking a decree for delivery of possession against the defendant No.2. He was also claiming a decree against defendant No.3 to whom the plot was sold by the defendant No.2. The defendant No.1 filed his written statement and admitted the claim of the plaintiff. According to the defendant No.1, a decree in terms of prayer clause (a) can be passed. By prayer clause (a), a decree of specific performance was claimed only against defendant No.1. The suit was opposed by defendant Nos.2 and 3. On the basis of rival claims, following issues were framed :-

"1) Does plaintiff prove that agreement (Ex.A) dated 27th February 1977 was registered under receipt (Ex.B) dated 29th March 1977 ?

2) Does he prove that the agreement relates to suit premises i.e. Flat No.14 on 3rd Floor, Building No.33, Mahim, Mumbai 400 016 ?

3) Does he prove that this flat was initially numbered as Flat No.7 and changed to Flat No.14 ?

4) Does defendant No.2 prove that he entered into development agreement bonafide without notice of agreement dated 27.2.1977 ?

5) Does defendant No.3 prove that he is bonafide purchaser for value without notice of agreement between plaintiff and defendant No.1 ?

6) Is plaintiff entitled to specific performance of the agreement ?

7) Whether in the alternative, plaintiff is entitled to claim damages and does he prove quantum of Rs.1,50,000/- ?

7A) Do the defendant Nos.2 and 3 prove that the suit has been filed collusively by the original plaintiff and the defendant No.1 ?

8) What decree or order ?"

On behalf of the plaintiff, son of the plaintiff by name Suhas was examined as a witness. On behalf of the defendant No.2, Bento Lobo was examined as a witness who was son of the defendant No.2. No oral evidence was led by the defendant No.3. The suit was decided by the learned Single Judge by his judgment dated 2nd July 2004. The learned Single Judge held that the plaintiff has proved that he entered into an agreement dated 27th February 1977 with the defendant No.1 and that agreement was lodged for registration on 29th March 1977. The second issue was also answered in favour of the plaintiff. The learned Single Judge held that the agreement dated 27th February 1977 relates to flat No.14 on third floor of the suit building. The learned Single Judge however held that the plaintiff is no