IMPORTANT POINT
Agreement to sell – A person who is not entitled to transfer any land agreement of same cannot be executed and consequently no specific performance of same can be enforced to execute sale deed.

JUDGMENT

Heard learned counsel for the appellants and learned counsel for the respondent.

2. The instant appeal is preferred on behalf of the appellants against the impugned Judgment dated 9th February, 2022 and decree dated 19th February, 2022 passed by the learned Civil Judge (Senior Division)-III, Giridih in Original (Title) Suit No.06 of 2007, whereby and whereunder the suit was dismissed.

3. The brief facts leading to this appeal are that the plaintiffs Shyam Kumar Gupta and Suraj Prasad Jaiswal has instituted a suit against Om Prakash Bhagat for specific performance of agreement to sale with these averments that an agreement was executed between plaintiffs and the defendant on 14th February, 2005 and it was agreed that 4 acre of land under Khata No.1 appertaining to Plot No.927 area 12 decimal, Plot No.928 area 3 decimal, Plot No.931 area 47 decimal, Plot No.933 area 1 acre 17 decimal and the area of Plot Nos.937 and 940 was to be ascertained after measurement Plot No.935 area 25 decimal and the Plot No.1090 area 59 decimal, Plot No.1092 area 9 decimal, Plot No.1006 area 32 decimal and land of Khata No.11 appertaining to Plot No.930 area 13 decimal, total area 4 acre of Mouza Koldiha, P.S. Giridih (Town), District Giridih and the details of the same are given in Schedule ‘A’ of the plaint as shown in the deed of agreement dated 14th February, 2005. It was also agreed that the land as described in Schedule ‘A’ of this plaint was to be sold in consideration of Rs.37,45,833/- and on the very day, the plaintiffs had paid five lacs rupees as the earnest money to the defendant which was accepted by the defendant. It was also stipulated in the agreement to sale that on payment of rest consideration amount of Rs.32,45,833/-, the defendant shall execute and register a sale deed in regard to the land shown in the Schedule ‘A’ of the plaint. Subsequently, the defendant also received Rs.1 lac from the plaintiffs on 10th April, 2005. Apart from this payment, the defendant has further received Rs.1 lac from the plaintiffs on 8th April, 2006. Thus, the balance amount which was to be paid was left Rs.30,45,833/-.

3.1 The deed of agreement was for a period of six months from the date of execution of agreement to sale i.e., 14th February, 2005. It was also agreed in that deed that the period will also be further extended up to six months on payment of 2% interest on principal amount.

3.2 It was also stipulated that the defendant shall get the land measured before execution of the sale deed and at the time of execution of sale deed defendant shall hand over the rent receipts and other related documents of the land to the plaintiffs.

3.3 The plaintiffs had always been ready and willing to perform their part of contract within the period stipulated in the deed of agreement.

3.4 The plaintiffs tendered the balance consideration amount to the defendant on 10th June, 2005 and 15th July, 2005 within a stipulated period of six months and requested to the defendant to execute and register sale deed but the defendant refused to receive the balance consideration and to execute the sale deed in favour of the plaintiffs either on the one pretext or the other. The legal notice was given by the plaintiffs through their counsel on 20th August, 2005 requesting defendant to perform his part of contract. Again, a legal notice was sent through their advocate on 29th September, 2005 to the defendant stating the readiness and willingness on the part of the plaintiffs to tender the balance amount of Rs.30,45,833/- and to perform his part of contract for execution of the sale deed in compliance of agreement to sale. Reply notice was issued by the defendant to plaintiffs on 9th October, 2006 and 5th October, 2005 on the wrong averments. As such there was no way out but to file this suit with the prayer for a decree of specific performance of agreement to sale directing the defendant to execute and register the sale deed in respect of suit land of Schedule ‘A’ of