STEPHONOS MAR THEODOSIUS Vs. WAMAN RAO

JUDGEMENT

(1.) This first appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 30-11-2004 passed by 7th Additional District Judge, Durg (FTC) in Civil Suit No.27/A of 2002 wherein the said court dismissed the suit filed by the appellant/plaintiff for specific performance of contract for land bearing Survey No.536/23 area 6.63 acres situated at village Kurud, Patwari Halka No.79, Tahsil and District Durg, Chhattisgarh.

(2.) Original appellant/plaintiff filed a suit against the original defendant/respondent No.1 Waman Rao Joshi (now deceased) for specific performance of contract for the land mentioned as above belonging to him in pursuance of the agreement to sale dated 7-8-1978 entered into between said Wamanrao Joshi (original appellant/original plaintiff) and plaintiff/appellant Stephonos Mar Theodosius.

(3.) As per suit filed by the original plaintiff/appellant Wamanrao Joshi entered into contract with him to sell his land bearing survey number as mentioned above @ Rs.7500/- per acre. An amount of Rs.100/- was paid to him by the original plaintiff on 7-8-1978. As per agreement sale deed was to be executed and registered by the Waman Rao Joshi before 30-11-1978 on receipt of balance amount from the original appellant. Written agreement to this effect was executed by both of them on 7-8-1978 and in pursuance of said agreement in writing original plaintiff/appellant was also placed in possession of the land on 7-8-1978 and since then he was in possession of the land in suit and is doing cultivation. It is further alleged that the land adjoining to the suit land belonged to the brothers and mother of said Waman Rao Joshi namely Mukundrao, Manohar Rao, Gajanand Rao and Smt. Parvati Devi which was earlier purchased by the original appellant/plaintiff under different sale deed in the year 1973 and 1977. The original appellant made improvement in the suit land by spending considerable amount and he was always ready and willing to perform his part of contract as agreed. The original appellant by letter dated 10-11-1978, 18-11-1978 and 22-11-1978 requested the said Vaman Rao Joshi to execute the sale deed but he did not turn up and on 23-3-1979 he served a notice to appellant for termination of agreement that is why original appellant filed suit before the trial Court and deposited Rs.49,775/-, the amount of balance consideration in the court on 22-11-1979 in civil court deposit. The original respondent contested the suit on various grounds and after death of original respondent his legal representatives namely Satish Kumar, Sunil Kumar, Sanjay Kumar and Sudhir Kumar who are sons of Waman Rao Joshi contested the suit on the ground that property in question was not in sole ownership of the said Waman Rao Joshi and all the four sons of Vaman Rao Johi were co-parceners of the property because property is ancestral property, therefore, sale deed cannot be executed in favour of the appellant. It was further pleaded by them that Urban Land Ceiling and Regulation Act 1976 (for short, "the Act, 1976") was on operation on the date of said agreement, therefore, the land could not be sold out without prior permission of competent authority and no independent person was entitled to keep more than 2000 sq.meter land in an urban agglomeration, therefore, agreement is not binding on them. It is further pleaded by them that the land in question was later on sold to other defendants, therefore, decree of specific performance cannot be passed. After recording evidence and hearing the parties, the trial Court dismissed the suit on the following grounds: