SHRIKRISHNA KESHAV KULKARNI Vs. BALAJI GANESH KULKARNI

JUDGEMENT

(1.) The suit giving rise to this second appeal was filed by the appellant, who died during the pendency of this appeal and whose legal representative have been brought on record, for specific performance of a contract of sale (Ex. 83) dated 15th October, 1957. The agreement was executed by defendants 1 and 3, who are brothers. It was in respect of two houses bearing Gram Panchayat Houses Nos. 383 and 384. The consideration for the sale was Rs. 2250/- out of which Rs. 200/- were paid as earnest amount. The houses were under attachment of creditors and the sale deed was to be executed after the attachment was raised. It was the case of the plaintiff that although a single document was executed, it contained two separate agreements, because defendants 1 and 3 were separate and the two houses were separate, defendant No.1 being the owner of house No. 384 and defendant NO. 3 being the owner of House No. 383. The plaintiff was put in possession of the two houses on the date of the agreement.

(2.) After the agreement was made by defendants 1 and 3 with the plaintiff, they agreed to sell the house to one Abdul Gani and received some amount of consideration by way of earnest money. Later, Abdul Gani brought Small Cause Suit No. 359 of 1960 against defendants 1 and 3 to recover the consideration paid by him. The plaintiff intervened and paid Rs. 250/- to Abdul Gani on behalf of defendants 1 and 3 and the suit was compromised on 14th February, 1961. Thereafter, defendant No. 1 sold House No. 384 to defendant No. 2 on 6th February, 1963 under a registered sale deed (Ex. 96) for a consideration of Rs. 1,200/- On the basis of the sale deed, defendant No. 2 tried to dispossess the plaintiff, which led to proceedings under Section 145 of the Code of Criminal Procedure. The plaintiff had, therefore, filed the present suit on 22nd May, 1964. It was initially filed only against defendant 1 and 2. Defendant No. 3 was not joined. On the trial Court expressing the view that the suit was liable to be dismissed defendant No. 3 who was also a party to the agreement (Ex. 83) , was not joined, the plaintiff joined defendant No. 3, but made him no more than a formal party, and claimed no relief against him. It appears that the plaintiff had filed a separate suit against defendant No. 3, being suit No. 59 of 1964, for specific performance of the agreement in respect of House NO. 383 and he had obtained a decree against defendant No. 3 in that behalf.

(3.) The trial Court deemed the plaintiff's suit , but it directed the plaintiff to deposit the entire amount of consideration mentioned in EX. 83 and not the proportionate consideration in respect in House No. 384 owned by defendant No.1 which defendant NO. 1 had sold to defendant no. 2. The plaintiff and the defendant NO. 2 both wen in appeal to the District Court, challenging the decree of the trial Court. The District Court dismissed the appeal field by the plaintiff and allowed the appeal filed by defendant No. 2. It set aside the judgment and decree of the trial Court and dismissed the plaintiff's suit for specific performance of the agreement (EX. 83), dated 15th October 1957. This the District Court did for two reasons. The first was that the suit in the present form was not maintainable. The contract (Ex. 83), was one contract so as to claim relief only against defendants 1 and 2 and in respect of House No. 384 without claiming any relief against defendant No. 3 in respect of House No. 383, both of which house were the subject-matter of the contract (Ex. 83). The second ground was that the plaintiff's suit was barred by limitation.