PURSHOTTAM S TALREJA Vs. COOVER PHIROZE BHARUCHA

JUDGEMENT

(1.) By this Appeal, the original Plaintiffs challenge the judgment and decree dated 8-9-2000 passed by the learned single Judge dismissing Suit No.1399 of 1981. That civil suit was filed by the present Appellants seeking a decree of specific performance of the agreement of sale dated 23-1-1979 in relation to the suit property. According to averments in the plaint, the Plaintiffs are the builders by profession carrying on business at Bombay. Defendants Nos. 1 to 5 are the owners of large piece of land situated at Lonavala, Taluka: Maval, District: Pune. According to the Plaintiffs, Defendants Nos. 2 to 5 executed power of attorney in favour of Defendant No.1 authorising him to enter into agreement to sell the property. In exercise of the power conferred by the power of attorney executed by Defendants Nos. 2 to 5 and also on his behalf, according to the Plaintiffs, Defendant No.1 signed the agreement of sale dated 23-1-1979. By that agreement, the Defendants agreed to transfer the land at Lonavala at the rate of Rs.25/- per sq.yard. Rs.15000/- were to be paid as earnest money on the date of the agreement. Further amount of Rs.15000/- was to be paid within a period of three months from the date of the agreement and the balance amount was to be paid on completion of the sale and the sale was to be completed within a period of nine months from the date of the agreement. In the agreement, it was declared that the suit land is an agricultural land and that the Defendants have already applied to the authorities for permission to use the land for non-agricultural purpose. It was stated that the sale will be completed within nine months from the date of the receipt of the permission to use the land for non-agricultural purpose. It is also recited in the agreement that the possession of the land will be handed over to the purchasers on completion of the sale. According to plaint averments, after execution of the agreement of sale the Defendants placed the Plaintiffs in possession of the land with full right and authority to develop the land and raise construction thereon. According to the Plaintiffs, apart from making payment of Rs.15,000/- as earnest money further amount of Rs.15,000/- was also paid. It is stated in the plaint, that from 9th May, 1979 disputes arose between Defendant No.5 and the Defendant No.1. Because of that dispute the sale-deed of the property could not be executed. It is submitted by the Plaintiffs that the Plaintiffs were waiting for the dispute between the Defendant No.1 and Defendant No.5 to be resolved. But when the Plaintiffs saw that the dispute is not getting resolved, they issued a notice to the Defendants dated 25th April, 1980 that they are willing to perform their part of the contract and that the Defendants should perform their part of the contract and execute the sale deed. When the sale deed was not executed by the Defendants, suit was filed.

(2.) On being served, the Defendants appeared. One Written statement has been filed by Defendants Nos. 1 to 4 and other written statement filed on behalf of the Defendant No.5. According to Defendants Nos. 1 to 4 while entering into the agreement of sale, the parties were under mutual mistake that the land is agricultural. Within one month of the execution of the agreement, when the Defendants applied to the Tahsildar, Maval for extract of revenue record, they learnt that the property has been assessed to non-agricultural use with effect from the year 1953. According to the Defendants, therefore, as the agreement to sell was executed under a mutual mistake, no decree for specific performance of that agreement can be granted. In the written statement, the Defendant No.5 contended that the power of attorney was obtained by Defendant No.1 from her by making misrepresentation and therefore, the agreement is not binding on her. It was also contended that the Plaintiffs had no authority to take possession of the land. The agreement does not contemplate them to be in possession of the land. Defendant No.5 never authorised the Defendant No.1 to hand over possession of the land to the Plaintiffs.

(3.) Both parties filed documents. The learned single Judge on the basis of rival pleadings and the documents framed issues between the Plaintiffs and the Defendants Nos. 1 to 4 and also framed issues between the Plaintiffs and the Defendant No.5. They read as under: