LAWS(BOM)-2010-8-110

VIRSEN BALWANTSINGH SOLANKI Vs. RATANSEY JAIKARAN PANDEY

Decided On August 12, 2010
VIRSEN BALWANTSINGH SOLANKI Appellant
V/S
RATANSEY JAIKARAN PANDEY Respondents

JUDGEMENT

(1.) The plaintiff had instituted this suit for specific performance of Agreement dated 28th January, 1979 against the original defendant Nos. 1 to 3 on the ground that original defendant Nos. 1 to 3 had by Agreement dated 28th January, 1979 (hereinafter referred to as the suit agreement) agreed to sell the property described in para 2 of the plaint (hereinafter referred to as the suit property) for total consideration of Rs. 3,81,000/-. During the pendency of the suit, defendant No. 1 expired and his heirs were brought on record as defendant Nos. 1A and 1B. Similarly, defendant No. 3 expired and his heir was brought on record as defendant No. 3A.

(2.) On 1st September, 2006 consent terms were arrived at between plaintiff and defendant No. 3A and consent decree was passed on 19th June, 2007 between plaintiff and defendant No. 3A. The Plaintiff and defendant No. 1A and 1B desired to arrive at settlement and file consent terms so as to grant decree in favour of the plaintiff as regards rights of the plaintiff to have specific performance against defendant Nos. 1A and 1B. Accordingly, consent terms dated 10th January, 2008 were placed on record duly signed by the plaintiff on one hand and defendant Nos. 1A and 1B on the other and this Court passed consent decree on 15th January, 2008 against defendant Nos. 1A and 1B as regards prayer for specific performance of the suit agreement in regard to the suit property. This mean, defendant No. 1A and 1B after having stepped into the shoes of defendant No. 1 and defendant No. 3A after having stepped into shoe of defendant No. 3, consented for executing the Sale Deed in favour of plaintiff pursuant to the suit agreement. No formal conveyance is executed by defendant No. 1A, 1B and 3A in favour of the plaintiff as the decrees were to act as conveyance. The suit remained pending against defendant No. 2 as defendant No. 2 wanted to contest the suit.

(3.) It is to be noted that defendant No. 2 had taken out Notice of Motion No. 3824 of 2008 so as to seek permission to file written statement after condonation of delay in filing in filing the written statement. Said motion was dismissed by speaking order dated 20th January, 2009. Against the said order, defendant No. 2 filed appeal, however, he lost therein. As a result of this, defendant No. 2 was precluded from filing written statement and the suit proceeded without filing written statement. The plaintiff has approached the Court with a positive case that apart from the three persons against whom he had filed suit, there was one more person who had rights in respect of the suit property and his name was Mr. Shivbali J. Pandey. According to plaintiff, after the death of said Shivbali Pandey, his wife Tulsadevi stepped into the shoes of said Shivbali Pandey and she had entered into consent terms for selling her share to the plaintiff. Accordingly, plaintiff obtained from said Tulsadevi consent terms dated 1st April, 1986. It is also the case of the plaintiff that on the said document titled as consent terms, defendant No. 2 had tendered his signature thereby consenting to have a decree against him in regard to the suit property. This document titled as consent terms has been taken on record and marked as Exh.P-2. It is to be noted that the suit was not filed against Tulsadevi and these consent terms were not taken on record and order in terms of consent terms was not obtained. The plaintiff in the course of trial has heavily relied upon this document to show the existence of the suit agreement, desire on the part of defendant No. 2 to consent for a decree and admission of the fact that full consideration was paid to Tulsadevi and defendant No. 2. This document was also relied upon to contend that possession of the suit was handed over after this document in the nature of consent terms was signed. Defendant No. 2 has challenged this document. Fact remains that this document was not used to secure a consent decree. In the year 2008, plaintiff took out Notice of Motion No. 1247 of 2008 praying that on the strength of the aforesaid document Exh.P-2 this Court should pass a decree on the ground that defendant No. 2 has tendered his signature on the consent terms and has manifested his intention to consent for a decree. Eventually, plaintiff withdrew said Notice of Motion. The suit was then taken up for hearing on merits.