GUNWANTBHAI MULCHAND SHAH Vs. ANTON ELIS FAREL

JUDGEMENT

(1.) Leave granted. This appeal is by the plaintiffs. Their predecessor-in-interest along with another entered into an agreement dated 18-12-1964 for purchase of the plaint scheduled property. The agreement was registered. The agreement was to be performed by the predecessor-in- interest of defendants 1 to 3, the other party to the agreement, within three months of the date of getting due permission for such sale, presumably from other co-owners. On 5-10-1968, a subsequent agreement was executed. It was stated that possession was transferred to the predecessor of the plaintiffs, in pursuance of the agreement for sale. An intending purchaser from the plaintiffs issued a public notice on 7-11-1993 inviting objections, if any, to the purchase to be made by him. Defendants 1 to 3 objected. In the light of this objection dated 19-11-1993, the plaintiffs filed the suit on 4-4-1994 for specific performance of the agreement dated 18-12-1964 and for a perpetual injunction restraining the defendants from interfering with their possession of the suit property. It may be noted that defendant No. 1 claims to have sold the property and the same has subsequently been purchased by defendant No. 4 from that vendee.

(2.) It was averred in the plaint that pursuant to the agreement for sale, the predecessor-in-interest of the plaintiffs, had paid the entire consideration in terms of the agreement and he was in possession of the property. The plaint implied that there remained nothing to be performed on the part of the plaintiffs on the terms of the agreement for sale and since on 19-11-1993, the plaintiffs came to know that the defendants were refusing to perform their part of the agreement, the suit was being filed. Defendant No. 1 resisted the suit. She did not admit the agreement. She put the plaintiffs to proof of the fact that the entire amount due as consideration and as per the agreement, has been paid towards the purchase price. She denied the averment to that effect in the plaint. She pleaded that she had transferred the title and possession to another and that other had sold the property to defendant No.4. The pecuniary jurisdiction of the trial court was questioned. A plea was also raised that the suit was barred by limitation. Defendant No. 4, the assignee, also reiterated those contentions.

(3.) Two other facts to be noted are that according to the plaint, the father, predecessor of the plaintiffs, died in the year 1972 and according to defendants 1 to 3 their predecessor, the other party to the agreement, died in the year 1965.