MOHAMMAD IBRAHIM Vs. MOHD YUSUF

JUDGEMENT

(1.) This Second Appeal has been filed by the defendants for setting aside the judgment and decree dated 24th May, 1982 passed by the learned VIth Additional District Judge, Moradabad by which the appeal filed by the plaintiff was allowed and the judgment and decree dated 12th September, 1980 passed by the Trial Court was set aside and the claim of the plaintiff for specific performance of the contract was decreed and it was further directed that the defendant no.1 will execute the sale deed in favour of the plaintiff within a period of one month after receipt of the balance amount of Rs.500/-.

(2.) Original Suit No.130 of 1997 was filed by Mohd. Yusuf initially against Mohd. Iliyas for specific performance of the agreement to sell dated 2nd June, 1976 and in the alternative, for recovery of Rs.6000/- from the defendant with interest. It was stated in the plaint that the aforesaid agreement to sell dated 2nd June, 1976 was executed between the plaintiff and defendant no.1 and the same was also registered; that the defendant had received a sum of Rs.6000/- as earnest money towards the total consideration of Rs.6500/- and the balance amount of Rs.500/- was to be paid at the time of execution of the sale deed; that the plaintiff was always ready and willing to perform his part of the contract but the defendant avoided it and, therefore, a notice was sent to the defendant to get the sale deed executed on 1st December, 1976 in the office of the Sub-Registrar and that the plaintiff went to the office of the Sub-Registrar on 1st December, 1976 along with the balance amount of Rs.500/- but the defendant did not turn up even though the plaintiff waited in the office for the entire day. Written Statement was filed by defendant no.1 stating inter alia that the plaintiff was his nephew and as there were huge sales tax dues against him and he was afraid that the property may be auctioned and sold for realisation of the said dues, he executed a fictitious agreement to sell the property in favour of the plaintiff; that he never received the amount of Rs.6,000/- at the time of execution of the agreement; that he had in fact sold the property to Mohd. Ibrahim and Jamil Ahmad through a registered sale deed on 16th May, 1977 for a consideration of Rs.12,000/- and, therefore, the suit for specific performance was infructuous and was liable to be dismissed.

(3.) In view of the aforesaid statement made in the written statement filed by defendant no. 1, the plaintiff impleaded Mohd. Ibrahim and Jamil Ahmad as defendant nos. 2 and 3. Separate written statements were filed by defendant nos. 2 and 3 mentioning therein that they had purchased the property from defendant no. 1 by a registered sale deed on 16th May, 1976 and they were entitled to the benefit of Section 41 of the Transfer of Property Act as they had acted in good faith after taking reasonable care to ascertain that the transferor had the power to make the transfer. It was also stated that the plaintiff and defendant no. 1 were closely related inasmuch as the plaintiff was the nephew and in order to defeat the claim of defendant nos. 2 and 3, the said suit had been filed.