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2010 Supreme(All) 1892
[2010(8) ADJ 401]
ALLAHABAD HIGH COURT
BEFORE : SANJAY MISRA, J.
MAHARAJ SINGH AND OTHERS …..Plaintiffs/Appellants
Versus
JAUHARI AND OTHERS …Defendants/Respondents
(Second Appeal No. 1242 of 1980, decided on 26th May, 2010)
Counsel :
Ashutosh Srivastava, H.N. Singh, A.K. Tiwari, C.P. Srivastava, Pradeep Kumar, Ravi Ranjan and S.P. Srivastava for the Appellants; K.M. Mishra, S.K. Purwar and Birendra Dixit for the Respondents.
Headnote:Specific Relief Act, 1963—Sections 20 and 16—Suit—Specific performance—Agreement of sale—In alternative, plaintiffs-appellants prayed for refund of advance given to defendant-1—According to plaintiffs, defendant No. 1 resiled from his contract and avoided to execute sale-deed and got another suit filed by his wife relating to property in question—Evidence led by plaintiffs fully proved execution and registration of agreement of sale—Advance of Rs. 12,000 out of sale consideration has been paid to defendant-1, plaintiff entitled to seek specific performance of agreement of sale—Defendants 2 and 3 claim to be bona fide purchaser for value without notice—Defendants-1 and 3 are husband and wife—Grant of decree of specific performance lies in discretion of Court—And Court has to take into consideration, circumstances of case, conduct of parties and their respective interest under contract—In instant case, defendant-1 who is vendor of plaintiffs has not contested proceedings and has not presented himself—Therefore, defendants 2 and 3, under such circumstances, discretion of Court is not required to be exercised under Section 20 of Act in their favour—Decree for refund on ground that defendants 2 and 3 have got a sale-deed from defendant-1, could not have been passed it being not a relevant consideration between plaintiffs and defendants 2 and 3—Hence, substantial question of law answered in favour of plaintiffs-appellants—And impugned judgment of first appellate Court set aside—And decree of trial Court for specific performance is affirmed—And plaintiffs-appellants suit decreed. [Paras 2, 12,14, 16, 17 and 18]
Result; Appeal Allowed.
Hon’ble Sanjay Misra, J.—This is a second appeal under Section 100 CPC filed against judgement and decree dated 4.4.1979 passed by the II Addl. District Judge, Etawah in Civil Appeal No. 87 of 1975, whereby the first appellate Court has set aside the judgement and decree dated 20.8.1975 passed by the trial Court in Suit No. 32 of 1974 (Maharaj Singh and others v. Jauhari and others) but has decreed the suit for refund of the amount.
2. The facts of this case are that the plaintiff-appellants filed a suit for specific performance of the agreement of sale dated 31.12.1973 relating to agricultural land and in the alternative, prayed for refund of the advance given to the defendant No. 1 namely Jauhari. The plot in question was No. 354 Kha measuring 1.75 acres situate in village Bahadurpur Lahaia, Pargana & District Etawah owned by the defendant No. 1, Jauhari. The agreement of sale stipulated that upon paying the balance amount the sale-deed would be executed within 5 months and the agreement of sale was duly registered. The plaintiffs allege that earlier he had purchased a part of the plot in question from the defendant No. 1. According to the plaintiffs, the defendant resiled from his contract and although the plaintiff asked the defendant No. 1 to execute the sale-deed, he avoided the same and got another suit filed by his wife relating to the property in question. The plaintiffs filed objections in that suit. In May, 1974 a notice was served on the defendant No. 1 fixing 29.5.1974 for execution of the sale-deed and its registration before the Sub-Registrar. The plaintiffs state that they were present before the Sub-Registrar on 29.5.1974 with money but the defendant did not come and plaintiffs came to know that he was negotiating with other persons for the land in question. The plaintiffs’ case is that alongwith agreement of sale the defendant No. 1 gave possession of the land to the plaintiffs and on the date when the instant suit was filed the defendant No. 1 executed a sale-deed of the land in question in favour of his wife alongwith the defendant No. 3. The plaintiffs allege that the defendant Nos. 2 and 3 had full knowledge about the agreement of sale dated 31.12.1973 and the sale-deed obtained by them from defendant No. 1 namely Jauhari was a transaction to defeat the plaintiffs claim for execution of the sale-deed.
3. The defendant No. 1, Jauhari did not contest the suit but his purchasers namely defendant No. 2 his wife and defendant No. 3 contested the suit. These subsequent purchasers set up the case that Jauhari never agreed to sell the disputed land nor he executed the agreement of sale nor he received any money in advance from the plaintiffs. It was alleged that the defendant Nos. 2 and 3 purchased the land from defendant No. 1 for a consideration of Rs. 18,000/- and such contract was recorded between the defendant No. 1 and defendant Nos. 2 and 3 in the agreement of sale dated 23.6.1973. It was the aforesaid agreement of sale that was got executed by the defendant Nos. 2 and 3 by way of filing the suit. It has been stated by the defendant Nos. 2 and 3 that the plaintiffs have full knowledge of the agreement of sale dated 23.6.1973 and therefore, the agreement of sale obtained by the plaintiffs from defendant No. 1 on 31.12.1973 could not be decreed for specific performance or even for refund. They claimed that the agreement of sale obtained by the plaintiffs was in effect a fraudulent document. The defendant Nos. 2 and 3 claim to be bona fide purchasers for value hence, no decree can be passed in favour of the plaintiffs.
4. On the aforesaid pleadings, the trial Court framed the necessary issues. On issue No. 1 as to whether the agreement of sale dated 31.12.1973 gave any rights to the plaintiffs was decided by the trial Court where it held that the plaintiffs paid Rs. 12,000/- to the defendant No. 1 as consideration for executing the sale-deed in pursuance of the agreement of sale dated 31.12.1973. A fi
