The principle of res judicata and the priority of a prior agreement to sell over a subsequent sale deed were central to the court's decision.

VALMIKI J. MEHTA, J.

C.M. Appl. No. 39034/2017 (for delay)

1. Though there is no reason to grant condonation of delay of 220 days in filing the appeal, since however I have heard counsel for the appellant on merits, this application is therefore allowed for that reason only.

The application stands disposed of.

RSA No. 255/2017 and C.M. Appl. No. 39035/2017 (for stay)

2. This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) by the appellant/plaintiff no. 2 impugning the concurrent judgments of the courts below; of the trial court dated 5.6.2012 and the first appellate court dated 5.11.2016; by which the suit filed for cancellation of the sale deed dated 12.11.1999 and the consequent mutation letter dated 16.12.1999 have been dismissed by the courts below.

3. Though a reading the plaint did not make it very clear that the appellant/plaintiff no.2 impugns the sale deed dated 12.11.1999 whether because the sale deed dated 12.11.1999 is of 52 sq. yards whereas it should be only for 35½ sq. yards under the agreement to sell dated 22.1.1999 pursuant to which the sale deed dated 12.11.1999 was executed or whether the sale deed dated 12.11.1999 is sought to be cancelled as a whole for the entire area mentioned therein, and which confusion had arisen because the appellant/plaintiff no.2 has made averments in the plaint with respect to the sale deed being executed for 52 sq. yards instead only for 35½ sq. yards in terms of an agreement to sell dated 22.1.1999, however counsel for the appellant/plaintiff no.2 clarifies and states that the suit is for cancellation of the entire area under the sale deed dated 12.11.1999.

4. At this stage itself, I may note that two plaintiffs, namely Sh. Rustam and Sh. Khalil Ahmed, had filed an earlier suit for specific performance against two defendants Md. Sayeed Ahmed and Sh. Feroz Ahmed (appellant herein) and in this suit for specific performance the two plaintiffs, Sh. Rustam and Sh. Khalil Ahmed had pleaded that they had entered into an agreement to sell with Md. Sayeed Ahmed/owner as regards of the suit property of 35 ½ sq. yards bearing nos. 2331-2332 consisting of four shops, one basement and one varandah on the ground floor, one room on the first floor with roof rights, in the property situated at Gali Dugdugi, Shah Kalan, Bazar Chitli Wabar, Turkman Gate, Delhi. This agreement to sell dated 22.1.1999 was entered into by the two plaintiffs Sh. Rustam and Sh. Khalil Ahmed with the defendant no. 1 in the said earlier suit for specific performance, namely, Md. Sayeed Ahmed. It was pleaded in the suit for specific performance that inspite of having entered into an agreement to sell on 22.1.1999, yet Md. Sayeed Ahmed thereafter executed a false sale deed dated 26.3.1999 in favour of defendant no. 2 in the said suit Sh. Feroz Ahmed (appellant herein). The sale deed dated 26.3.1999 was pleaded in the suit for specific performance of the agreement to sell dated 22.1.1999, to be illegal and not binding upon the two plaintiffs Sh. Rustam and Sh. Khalil Ahmed of the said suit for specific performance. In this suit for specific performance an ex-parte decree was passed in favour of the two plaintiffs Sh. Rustam and Sh. Khalil Ahmed vide judgment dated 17.7.1999 as the two defendants in the said suit (including the appellant herein being the defendant no. 2 in the said earlier suit) failed to appear. Suit was decreed by the judgment and decree dated 17.7.1999, however, subsequently an application was filed by the defendant no. 1 Md. Sayeed Ahmed in the said suit under Order IX Rule 13 and that application was allowed by an order dated 30.5.2001. What is the present status of that suit for specific performance filed by Sh. Rustam and Sh. Khalil Ahmed against Md. Sayeed Ahmed and the present appellant Sh. Feroz Ahmed, is not found on the record of this case, but counsel for the appellant says that this suit has again thereafter been decreed and the appellant propose