DAVE RAMSHANKAR JIVATRAM Vs. BAI KAILASGAURI

JUDGEMENT

(1.) This is origional defendant's second appeal directed against the decision of the learned Assistant Judge Baroda given on September 26 .1967 . in Regular Civil Appeal No 162 of 1965 . thereby affirming the decision given in decree of specific performance of an immovable property situated in the city of Baroda . which the appeallant defendant has earlier purchased and then agreed to reconvey the same within a period of seven years from the date of the agreement of reconveyanance . Exhibit 27 . The Courts below have rejected the defence of the appeallant -defendant that the decree of specific performance will give the plaintiff - respondant an unfair advantage over the defendant appellant which he did not forsee . The Courts have thus taken the view that the case does not fall under clause (a) or clause (b) of sub - sec (2)n of section 20 of the specific Relief Act . 1963 (Act No 47 of 1963 ) hereinafter reffered to as the Act ) The defence contention does not appear to have been dealt with at length or may not have been urged before the lower appellate Court in details .

(2.) It appears that the plaintiff respondant Bai Kaiasgauri . widow of Desai Ishwarbhai Ranchhodbhai was the owner of the suit property which is a house having a ground floor and two upper floors . situated in Ghantivada in the City of Bazroda . She also owned another house known as the Haveli in which she was residing . the Ghantiyada house in favour of Dave Ramshanker Jivatram defendant appellant who was a school teacher . The sale was by a registered sale deed dated June 25 1959 for a consideration and also of the material fact that the house was old and in a dilapidated condition and there was no latrine in the house . It states that it was sold and with possession and that under no circumstances the house was to be taken back form the defedant appellant permantly and with possession and that undwer no circumstances the house was to be taken back from the defendant - appeallant this sale deed was got registered on the next day , June 26 1959 It was executed on a stamp paper of Rs 1.50, signed and duly attested . the defendant appellant who had purchased the property has executed the document in the favour if plaintiff No. 1. respondent The document states that although the executant had purchased the property and had become the owner of the property for the same amount of consideration viz Rs 5.999/ - to the plaintiff respondant within a pereiod of seven years . It further states that as the property to be reconveyed to her within a period of seven years the executant was entitled to make necessary repairs and incur expenses upto limit of Rs 751/ - if plaintiff No . 1 required the property to be reconveyed to her within a period of seven years to her within a period of seven years the excutant would hand over the property to the plaintiff on the same consideration plus Rs. 751 as the expenses incurred for repairs etc thus on the incurred for repairs etc thus on the incurred for repairs etc thus on the day following the day on which the defendant purchased the suit property from plaintiff on the same consideration plus 751/ as the expenses incurred for repairs . etc thus on the following the day on which the defendant purchased the suit property from plaintiff No. 1 defendant agreed to redonvey the property to plaintiff no 1 within a period of seven years for the same consideration plus Rs 751 as the amount oif expenses incurred in repairs . etc The plaintiff no 1 who wants the property to be reconveyed has filed the present suit being Regular Civil suit No 415 of 1963 in the Court of the 4th Joint Civil Judge Junior Division Baroda the plaintiff offered to pay the same amount of consideration plus the amount oif expenses as stipulated . The defedant resisted the suit and contended inter alia that the grant of the decree of specific performance would give an unfair advantage to the plaintiff over the defendant and would cause hardship to the defendant . It was contended that the decree for specific performance should not be granted in view of the fact that plaintiff NO . 1 HAD ENTERED INTO AN AGREEMENT OF SALE OF THE SUIT PROPERTY WITH PLAINTIFFS NOS 2 AND 3 and therefore compensation in money was the adequate relief . It was also contended that the agreement of recobveyance . Exhibit 27 was without consideration and it was out of good relation between the parties that it was entered into . It was contended that Exhibit 27 was executed ob a blank paper and the defendant had relied upon the representation made by one Mahendrakumar . Nephue of plaintiff No1 to the effect that the suit house was to be given for personel use of plaintiff No 1 only in case she was required to sell her Haveli building in which she was contended that both documents . Exhibits Nos 17 and 27 were not simultaneously executed and formed part of one and the same transaction and that demand Exihibit 27 required registration and in the absence of the document having been registered it could not affect the property sought to be reconveyed thereby . The court below have rejected all these contentions . However as aforesaid the Courts do not appear to have considered the question of compensation in money being the adequate relief , The learned trial Judge passed a decree of specific performance in favour of plaintiff No 1 on payment by her of Rs of Rs 5.999 plus Rs 751 as costs if repairs etc the costs of execution and registration of the sale deed to be borne by the plaintiff No . 1 should be at liberty to have the sale deed to borne by the plaintiff No 1 should be at liberty to have the sale deed executed through the Court No relief was granted in favour of plaintiff Nos 2 and 3 and it was held that plaintiffs Nos 2,3 had no legal right to specific performance of the agreement In the appeal against this decision the learned Assisstant Judge Baroda has rejected the defence and confirmed the decree of the trial Court . It is found that the agreement was not made as alleged in paragraph 13 of the written statement of the defendant wherein a plea of the document having been executed on a representation being made by one Mahendrakumar was taken . It was found that the suit agreement was not without consideration . It was found that suit agreement was not without consideration . It was found the suit agreement was not without consideration , It was found that the plaintiff was entitled to the reconveyance being made . The trial Court has thus been confirmed . To this application to be joined as parties and did not seek any relief . It is against this decision that the present second appeal is directed and is filed by the origional defendant and to which the origional plaintiff Nos . 2 2293 of 1968 for joining them as parties in this appeal .

(3.) Mr M.B. Shah . learned advocate appearing on behalf of the appellant had contented before me that the document Exhibit 27 was without consideration was brought about on the representation made by Mahendrakumar and that it was executed and signed on a blank paper . these are question of fact and these contention have been rejected by the two Courts below It would therefore not be opem to me to go into these question .