SHIVANATH BABURAO WALKE Vs. FLORA DSOUZA

JUDGEMENT

(1.) THIS is plaintiffs second appeal arising from Special Civil Suit No. 388/89/a and was admitted on several substantial questions, one of which reads as follows:-

(2.) SOME facts are required to be stated to dispose of this second appeal and the parties hereto shall be referred to in their names as they appear in the cause title of the said civil Suit.

(3.) THERE is no dispute that the plaintiff entered into an agreement with the defendant dated 26-9-1986 agreeing to sell to the plaintiff the defendant's property known as "aradi OF PEDEM GRANDE" having Chalta no. 17 of P. T. Sheet No. 78 of City Survey of mapusa on terms and conditions mentioned in the said agreement. In addition to the said agreement of sale, the defendant also executed a general Power of attorney on 17-10-1986 in favour of the plaintiff. This Power of Attorney was executed to enable the plaintiff to get all relevant documents ready for execution of Sale Deed. The defendant also executed an affidavit on 17-10-1986 reiterating that she was the lonely (only?) heir. Inspite of agreeing to sell the property and further reiterating that the plot agreed to be sold was allotted to her by her uncle one mr. Aphy D'souza by virtue of Deed of exchange dated 10-3-1981 registered with the sub Registrar of Bardez at Mapusa under no. 274, it appears that thereafter there were differences between the plaintiff and the defendant and probably the defendant represented to the plaintiff that the was unable to execute the Sale Deed because her sisters had also an interest in the said property. The defendant again reiterated the said stand by her letter dated 26-9-1988 stating that the said property was jointly owned by her along with her sisters and that she could not sell her undivided share to any outsider. The defendant also showed her willingness to refund the earnest money of Rs. 2,300/-advanced by the plaintiff to the defendant. The said letter dated 26-9-1988 was written by the defendant to the plaintiff in response to the plaintiff letter dated 4-7-1988 calling upon the defendant to hand over the possession of the property within 15 days failing which he would be compelled to file a civil Suit as well as a Criminal Case. The plaintiff then filed the Civil Suit for specific performance of the agreement of sale dated 26-9-1986 and also for permanent injunction to the defendant from selling the said plot to others. The defendant contested the suit and the learned trial Judge framed 3 issues, namely, (a) whether the plaintiff was entitled to the specific performance of the said agreement dated 26-5-86, (b) whether the defendant proved that the suit was bad for non-joinder of necessary parties and (c)whether the defendant proves that the suit was barred by limitation.