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ALLAHABAD HIGH COURT
Rakesh Sharma, J.
Kishan Chand and Ors. —Petitioners
versus
Dr. Kailash Chandra Gupta —Respondent
First Appeal No. 776 of 2000 along with First Appeal No. 777 of 2000
Decided on 22.1.2010
For the Petitioners: Mr. Shashi Nandan,
Mr. Manoj Kumar Singh, Mr. Manoj Kumar Nigam, Mr. Asutosh Srivastava, Mr. Janardan Sahai & Mr. A.K.Gupta, Advocates.
For the Respondents:Mr. Murlidhar, Mr. SiddharthVerma, Mr. RP. Singh, Mr. Vivek Verma & Mr. Prabodh Gaur, Advocates.
IMPORTANT POINT
Suit for specific performance would not lie against a person, who did not have any lawful title in suit property.
Headnote:Specific Relief Act, 1963, Sections 16(c), 22(c)—Civil Procedure Code, 1908, Order 2, Rule 2—Suit for specific performance of agreement to sell—Maintainability of—Ingredients of Section 16(c) of Act not satisfied in suit—Suit decided without dealing with matter raised in suit—Execution of agreement not proved—Co-owners of suit property not impleaded—Question as to whether a co-owner having 1/4th share in suit property can dispose of entire property, not answered—No partition taken place amongst co-sharers—Suit barred by Section 22(c) of Act 1963 and Order 2, Rule 2 of CPC—Impugned judgment and decree of trial Court, decreeing suit suffers from patent errors of law and fact—Set aside—Suit dismissed—Appeal allowed. [Paras 28 to 37]
Result: Appeal allowed.
Rakesh Sharma, J. —Since in both these First Appeals common controversy is involved and as such these Appeals are being decided by this one and common judgment.
2. 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.
3. These First Appeals, under Section 96 of the Code of Civil Procedure, have been preferred against the judgment and decree dated 31.05.2000, passed by the V-Additional District Judge, Varanasi, in Original Suit No.724 of 1989, Dr. Kailash Chandra Gupta v. Mirza Anwar Bakht & Ors. and Original Suit No.731 1989, Dr.Kailash Chandra Gupta v. Swaleha Sultan Begum & Ors. 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 22.02.1988, registered on 05.04.1989 and in the alternative refund of Rs.35,000/- alongwith 24% interest per annum was also sought.
4. 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 22.02.1988 and the same was registered in the office of the Sub Registrar on 05.04.1989.
5. 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. 2,50,000/- (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. 2,50,000/- ) 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 vendors, the plaintiff-Dr. Kailash Chandra Gupta, had filed a Suit No. 287 of 1989 on 25.04.1989, seeking therein a permanent injunction restraining the vendors from transferring the property under the Agreement to Sell to anyone else. An ad interim order was passed on 25.04.1989, 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 04.09.1989. Another Suit No.731 of 1989 was also filed by the plaintiff—Dr. Kailash Chandra Gupta in which another interim order was passed on 21.01.1990, 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.
6. 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
