PADMANABAI DHARMARAO SHETGAR Vs. GOPAL SHRINIWAS SHIRSIKAR

JUDGEMENT

(1.) THE appellant has preferred this appeal against the judgment and order passed by Addl. District Judge, solapur dated 30th November, 1989 partly allowing the appeal but concurring with the findings of the learned trial court that specific performance of the contract cannot be granted in favour of the Plaintiff. This finding came to be recorded in the appeal against the order passed by Joint Civil Judge, Junior Division, solapur dated 25th November, 1986 dismissing the plaintiff's suit for specific performance but granting refund of earnest money at the foot of the suit transaction.

(2.) I have heard the learned counsel for both the parties. Perused the entire record including the written submissions filed by both the sides.

(3.) THE plaintiff came with the suit for specific performance of the agreement with the defendant no. 1 with allegations that the suit property was owned and possessed by defendant no. 1 as it had been allotted to his share. It was alleged that the defendant no. 1 is a karta of the joint family and intended to sell the suit house. It is the case of the plaintiff that he approached the defendant and they settled the transaction of the suit house for Rs. 15,000/= and accordingly on 25. 9. 1978 they entered into an agreement of sale and at that time defendant no. 1 was paid rs. 9000/= as earnest money. It is alleged that the terms and conditions of the agreement were that it was for the defendant no. 1 to obtain necessary permission at his costs and after obtaining the same and informing the plaintiff in writing he should execute the sale deed within two months therefrom. It was also alleged that till the execution of the sale deed defendant no. 1 was to pay the taxes. The expenses towards the execution of sale deed was to be incurred by the plaintiff. It is further case that on 25. 9. 1978 the plaintiff was put in possession of the first floor as part performance of the agreement and in case if defendants failed to execute the sale deed the plaintiff should get the same through court. It is the case of the plaintiff that he was ready and will to perform his part of the contract, the defendant no. 1 has committed breach. The plaintiff further alleged that he intimated the defendant no. 1 to obtain necessary permission but no steps were taken. It is also the case that amount of Rs. 860. 40 ps. had been recovered from the plaintiff as the tax amount and therefore, according to the plaintiff, the said amount is liable to be adjusted and deducted from the earnest money and suit transaction amount. It was further submitted that even though the defendant no. 1 was informed to remain present and to execute the sale deed, however, he had refused to execute the sale deed and hence the suit came to be filed. It is contended that defendant no. 1 had filed R. C. S. No. 944 of 1975 for possession against the defendant no. 2 therefore, defendant no. 2 had been added as party to the proceeding. It is further alleged that the suit transaction is binding on defendant nos. 3 to 6, as the members of the joint family and they have also got the benefit of the suit transaction. On this ground the plaintiff has filed the suit seeking decree for possession of specific performance of the suit property. In the alternative he prayed for refund of earnest money.