BHIKU KERU GADE Vs. DASHRATH

JUDGEMENT

(1.) THE suit giving rise to this appeal was filed by the plaintiff for specific performance of the agreement of sale. The material facts stand briefly as follows; Survey No. 42 A measuring for acres and forty-seven gunthas and assessed at Rs. 14 (plus water cess Rs. 5 ) situate in Moravale village orginally belonged to the plaintiff. He had leased the said land to Keru Mahadu Gade, the father of defendants Nos. 3 to 5, and the name of Keru had been entered in the record of rights as a protected tenant. On 2-2-1955 the plaintiff executed a sale deed in favour of defendants Nos. 1 and 2 and Keru Mahadu. the father of defendants Nos. 3 to 5, for a sum of Rs. 2000 (Ext. 44 ). The same day, defendants Nos. 1 and 2 and defendant No. 3, who is the son of Keru Mahadu, executed an agreement of sale in favour of the plaintiff (Ext. 56 ). The agreement stipulated that the property would be reconveyed to the plaintiff on his payment of the sum of Rs. 2000, for which it was sold to the defendants Nos. 1 and 2 and Keru Mahadu. Keru Mahadu died in April 1956. On 5-5-56 the plaintiff gave a notice to defendants Nos. 1 to 3 calling upon them to execute a sale deed in pursuance of the agreement of sale dated 2-2-55. The plaintiff stated that he was prepared to pay the amount of Rs. 2000,. the stipulated consideration for the reconveyance. The defendants not having cacceded to the request contained in the notice, the plaintiff filed a suit on 15-6-56 against defendants Nos. 1 to 3 for specific performance. The plaintiff's case was that although the sale deed stood in the name of defendant Nos, 1 and 2 and Keru Mahadu, still Keru was a benamidar, and the real owner was defendant No. 3, Bhiku Keru. Alternatively, the plaintiff pleaded that assuming that the land was purchased for the joint family of Keru Mahadu and his sons, still the agreement was binding upon the entire family by reason of the fact that Bhiky executed the agreement for and on behalf of the joint family.

(2.) DEFENDANTS Nos. 1 to 3 resisted the plaintiff's claim on several grounds. One of the contentions raised was that the agreement of sale was the result of misrepresentation, their signatures having been taken on a blank paper. Defendant No. 3 specifically contended that he had no title in the suit property at the time of the sale deed and, therefore, the agreement was not enforceable. He also asserted that he was not a member of the joint family and that all his brothers were divided in interest. He suggested that defendants Nos. 4 and 5 were necessary parties to he suit. Defendants Nos. 4 and 5 were added as parties to the suit. They contended that they were divided in interest and that defendant No. 3, Bhiku had no right to execute the agreement of sale so far as their shares were concerned.

(3.) IT was also contended that defendants Nos. 3 to 5 were tenants and, therefore, the civil Court had no jurisdiction to award possession as against the tenants.