VASUDEO HARCHAND KOLHE Vs. BHAULAL NADARSINGH RAJPUT

JUDGEMENT

(1.) THIS is plaintiffs' appeal against a decree passed by the learned Civil Judge Senior Division, Jalgaon, in Special Civil Suit No. 45 of 1975, dismissing the plaintiffs' suit for specific performance and decreeing the suit only for a sum of Rs. 16,250. 00, though the consideration which was alleged to have passed from the plaintiffs to defendant No. 1 was to the tune of Rs. 24,500. 00 or so. The claim for possession also was dismissed.

(2.) THE facts as they transpire from the pleadings and the documents show that an area admeasuring 3 Hectors and 12 Rs. out of former Survey No. 96/1-A of village Sakali, which formed part and parcel of consolidated survey No. 829-B, was the subject matter of the suit. According to the plaintiffs/appellants, under an agreement dated 27/01/1974, respondent No. 1/defendant No. 1 had contracted to sell the said land to the appellants plaintiffs for a sum of Rs. 28,000. 00 and had executed in their favour an agreement of sale vide Exh. 104. An amount of Rs. 5,000. 00 was allegedly paid as earnest money at the time of execution of the document. But, the liability to pay off certain debts of the defendants before the execution of the sale deed was taken by the plaintiffs. According to the plaintiffs, the possession of the land was given to him and the sale deed was to be executed after defendant No. 1 had obtained permission of the authorities under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, for the sale in question. The plaintiffs contended further that in pursuance of this agreement and the delivery of possession, he had discharged the liabilities of the defendant No. 1 as follows : Rs. 7,000 paid on 6/03/1974 in Special Darkhast No. 28 of 1973 to the decree holder Bismilla Toshamkhan Pathan; rs. 500 paid on the same day at the said time for house-hold expenses of defendant No. 1; rs. 3,850 deposited in the Land Mortgage Bank on behalf of the defendant No. 1; rs. 1,150 paid to defendant No. 1 from time to time for house-hold expenses; rs. 500 paid to defendant No. 1 on 27/05/1974; rs. 2,100 deposited in the Tahsil office at the time of making an application for permission; Rs. 500 paid to defendant No. 1 on 29/05/1974; rs. 750 paid on 29-9-1974 to repay the bunding loan, and rs. 3,000 paid to Motiram Bharambe on 30/06/1974 for cancellation of a deed of agreement executed by defendant No. 1 in favour of said Motiram Bharambe. @@@ contending further that though only an amount of Rs. 3,000. 00 to Rs. 4,000. 00 had remained to be paid, the defendant No. 1 had started negotiating with others for the sale of the land. His application for permission dated 16/07/1974 was pending for inquiry, but he had withdrawn the same on 21/02/1975. In the meanwhile, the plaintiffs had' given a public notice in a newspaper on 22/01/1975, in connection with his transaction with the defendant No. 1 and had asked for the specific performance. As the defendant No. 1 had failed to comply with the requisition, the suit was brought for specific performance of the agreement of sale and the consequential reliefs, including damages, etc.

(3.) DURING the pendency of the suit in the Civil Court, Jalgaon, the land in dispute was sold by defendant No. 1 to the defendant No. 2. Therefore, he was impleaded as a party to the suit.