B R RANGASWAMY Vs. D SYED YOUNOUS

JUDGEMENT

(1.) THIS appeal is filed by the plaintiff challenging the judgment and decree dated 15-4-1989 passed by the IV Additional City Civil Judge, mayo Hall, Bangalore City, in O. S. No. 8443 of 1980 (Old No. 216 of 1980) insofar as rejection of his suit for specific performance directing defendant 1 to execute the sale deed in respect of the suit schedule property is concerned. Original defendants 2 to 4 have filed cross objections challenging the judgment and decree of the Trial Court insofar as the findings against them are concerned.

(2.) THE facts of the case are as follows:. The suit schedule property bearing Old No. 14, New No. 86, situate in Richmond Road, Civil Station, Bangalore, belongs to defendant 1-D. Syed Younous. As per the plaint allegations, in the year 1978 when defendant 1 was on the look out for a purchaser for the schedule property since he had not been getting proper returns therefrom; defendant 1 had contacted the plaintiff. After several meetings between the plaintiff and defendant 1, the plaintiff agreed to purchase the property for a consideration of Rs. 5,00,000/- free from all encumbrances and defendant 1 agreed to sell the same; as such, an agreement dated 23-8-1978, vide exhibit P. 1, came to be executed between the parties; and as per the terms of the agreement, an advance of Rs. 10,000/- was paid at the time of agreement and it was further agreed that defendant 1 should give the plaintiff a reasonable time of two years for payment of the balance and to get the sale deed executed and registered either in his name or in the name of his nominee. It is contended that during the relevant period, it was necessary for the owner to obtain permission of the competent authority under Section 27 (2) of the Urban Land (Ceiling and Regulation) Act (hereinafter referred to as the 'act' ). As such, a draft sale deed was prepared and the same was submitted along with an application for permission by defendant 1 to the competent authority, Urban Land Ceiling, Bangalore, on 12-5-1980 to sell the schedule property in the name of the nominee of the plaintiff. It is alleged that, when the said application was pending consideration, the plaintiff came to know that defendant 1 had tiled similar application under Section 27 (2) of the Act seeking permission to sell the very property in favour of defendants 2 to 4 for a consideration of Rs. 5,70,000/ -. As defendant 1 submitted two applications seeking permission for alienation of the same property in favour of two different parties, the dispute was raised before the competent authority. In the application seeking leave to sell the schedule property in favour of defendants 2 to 4 it was mentioned that there is an agreement of sale in favour of defendants 2 to 4 on 15-11-1978. The plaintiff filed his objections before the competent authority contending that the alleged agreement dated 15-11-1978 in favour of defendants 2 to 4 was a fraudulent transaction with intent to deprive the plaintiff of his right under the agreement dated 23-8-1978. Considering the rival contentions, the competent authority held that, as the dispute is of a civil nature and has to be decided by competent forum and as such by the order dated 26-6-1980 both the applications under Section 27 (2) of the Act one relating to the sale in favour of the plaintiff and the other in favour of defendants 2 to 4 were rejected. Even thereafter defendant 1 on 27-6-1980 filed another application under Section 27 (2) of the Act once again seeking permission to sell the property in favour of defendants 2 to 4 to which the plaintiff has already filed his objections and the matter is pending. In view of these developments, the plaintiff contended that as defendants 1 to 4 have colluded together and have created fraudulent documents with the sole intention of making unlawful gain depriving the plaintiff of his legitimate right even though he was always ready and willing to perform his part of the contract, and as such he approached the Civil Court in the present suit praying for a judgment and decree of specific performance directing defendant 1 to execute the registered sale deed conveying the suit schedule property in his favour in accordance with the terms and conditions of the agreement dated 23-8-1978 and to handover possession. In the alternative, it is also prayed that for any reason, if the Court holds that this relief cannot be granted to the plaintiff, the Court be pleased to grant a decree for damages of a sum of Rs. 3,13,450/- together with interest and cost along with the advance of Rs. 10,000/- paid under the agreement. This suit was filed on 30-7-1980. On receipt of the notice, defendant 1 appeared through his Counsel and filed his written statement, inter alia, contending that the plaintiff has obtained and got executed the agreement in his favour using undue influence, coercion and fraud and as such the same is not binding nor is executable against him; that much prior to entering into the agreement with the plaintiff, he (defendant 1) had entered into an agreement with one E. P. Varuny of Bangalore on 11-7-1975 for the sale of the property. It is contended that subsequently the said Varuny assigned it in favour of defendants 2 to 4 for which he (defendant 1) had no objection. Accordingly, on 4-5-1978 another agreement was entered into between defendant 1 on one hand and defendants 2 to 4 on the other. On that day a token advance of Rs. 101/- was also paid to him. Thereafter, a formal agreement came to be entered into on 15-11-1978 between defendant 1 and defendants 2 to 4. It is contended that, in fact, there was an agreement between defendant 1 and the said Varuny for selling the suit schedule property with vacant possession and in this regard, though defendant 1 had filed an eviction suit against his tenant, he was unable to get vacant possession and as such the agreement could not culminate into a sale deed. However, at that stage the plaintiff entered into picture and promising to settle the matter with the previous agreement holders, viz. , Varuny and defendants 2 to 4, and also to take the suit schedule property without actual possession and as such believing the words of the plaintiff a formal deed of agreement was entered into in his favour. It is contended that the agreement in favour of the plaintiff was only a speculative agreement which was got executed under undue influence and coercion and fraud. It is also contended that another property belonging to defendant 1 situate at Dickenson Road was also for sale and similar agreement was executed in favour of defendants 2 to 4 and, as there was also difficulty in giving vacant possession, the plaintiff has in fact forced defendant 1 to sell that property also to his brother which is the subject-matter of another suit. It is further contended that defendant 1 and the plaintiff agreed to get the regular sale deed executed and registered and complete the transaction within 2 months, but by playing fraud the plaintiff has introduced the time of two years instead of two months in the agreement which also shows that the entire effort of the plaintiff was to defraud defendant 1 and also defendants 2 to 4. It is further contended that defendant 1 had never intended to sell the property in favour of the plaintiff. He has further contended that the agreement in favour of the plaintiff is a speculative transaction under which the plaintiff gets no right and the agreement is therefore not binding on him (defendant 1 ). On these and other grounds, defendant 1 prayed for dismissal of the suit. Defendants 2 to 4 on entering appearance filed their common written statement inter alia reiterating the pleadings of defendant 1. It is further contended that defendants 2 to 4 wanted to invest and have property in Bangalore and as such, after selling their properties at Mudigere, entered into an agreement with defendant 1 for purchase of the suit schedule property as well as the property at Dickenson Road. They have paid a token advance of Rs. 101/- on 4-5-1978 itself and as the agreement was misplaced, they had to enter into another formal agreement dated 15-11-1978. It is further contended that as defendant 1 was unable to obtain vacant possession as agreed to, the execution of the sale deed and the registration thereof were to be postponed and in the mean while during the Urban Land Ceiling proceedings it was brought to their notice the fraudulent agreement of the plaintiff which they contested. Further, it is contended that in view of the fact that defendant 1 had entered into agreement with these defendants much prior to the agreement with the plaintiff and also the fact that there was a prior agreement between defendant 1 and Varuny which later came to be assigned in their favour, the agreement in favour of the plaintiff; even if it is true, would be latter in point of time and as such it is these defendants who have prior right to purchase the property and not the plaintiff and as such prayed for dismissal of the suit.

(3.) BASED on these pleadings, the Trial Court framed the following issues: