HARISH RAMANLAL DESAI Vs. D S CONSTRUCTION CO

JUDGEMENT

(1.) THE present appeal arises against the judgement and decree dated 22.9.2009 passed by the learned Civil Judge in Special Civil Suit No.155 of 1992, whereby the suit is partly allowed against the defendant Nos.1, 2, and 3 and the plaintiff is directed to pay the cost of defendants No.4 to 12.

(2.) THE short facts of the case appear to be that the suit for specific performance of contract was filed on the ground that for the suit property, an agreement to sale was entered into between the plaintiff and defendants No.1 to 3 for a consideration of Rs.15,00,001/-. As per the plaintiff, the amount of Rs.75,000/- was paid as earnest money and thereafter Rs.25,000/- was additionally paid. THEreafter, as the sale deed was not executed, the suit for specific performance of contract was filed. THE lower Court after the evidence was recorded and the matter was heard, passed the judgement and decree, whereby the relief for specific performance of contract has not been granted and the defendants No.1 to 3 are directed to pay the amount of Rs.1,50,000/- to the plaintiff and the damages claim of Rs.1 crore to the plaintiff by the defendants No.4 to 12 is not granted. However, the lower Court has directed the plaintiff to bare the cost of defendants No.4 to 12. Under these circumstances, the present appeal before this Court.

(3.) THE examination of the said contention shows that upon the evidence on record, the trial Court has found that the property in question was auctioned in the Court proceedings and vide order dated 26.7.1976 the sale was confirmed in favour of Smt. Fatesinhrao Gaekwad and sale certificate was also issued on 14.4.1977. THEreafter the said property was transferred in favour of M/s.Alaukik Trading and Investment Private Limited and the said M/s.Alaukik Trading and Investment Private Limited thereafter sold the property by a registered sale deed. Under these circumstances, the trial Court has found that the defendants No.1 to 3 were not owners of the property. Merely because the revenue entry was showing the names of defendants No.1 to 3 would not result into nullifying the effect of the registered sale deeds executed long back for transfer of the property. Once the trial Court found that the Defendant Nos.1 to 3 were not the owners of the property, the exercise of direction for declining the decree for specific performance of contract cannot be said to be an erroneous approach on the part of the trial Court even if the agreement to sale was proved and the part of the consideration was paid. If the the sellers were not the owners at the relevant point of the property in question, they had no title of the property, which could be conveyed by way of specific performance of contract. THErefore, the said contention cannot be accepted.