CHANDULAL BALAPRASAD PARANDEKAR Vs. ABDUL KARIM SAHEBLAL SAYYAD

JUDGEMENT

(1.) While admitting the second appeal by the order dated 8-4-1988, the following two substantial questions of law have been framed : -

(2.) The undisputed facts leading to the second appeal are that, the appellants-plaintiffs had filed Special Civil Suit No. 83 of 1968 for specific performance of the agreement for sale of the agricultural land in Survey No. 64 admeasuring about 50 acres-and 39 gunthas situate at village Gulvanchi, Taluka- North Solapur. Defendant Nos. 1 to 3 are the owners of the land who had agreed to sell the land to the plaintiffs for a consideration of rs. 22,951/- and agreement for sale was executed on 20-9-1965 and an advance amount of Rs. 3,500/- was paid to the defendants. There were standing crops in the land and, therefore, it was agreed that the possession of the suit land to the extent of half portion would be handed over to the plaintiffs by the end of the year 1965. On 24-9-1965 the plaintiffs paid an additional amount of Rs. 5000/- to the defendant No. 1 and on 14-11-1965 possession of 25 acres of the suit land was handed over to the plaintiffs in pursuance of the part performance of the agreement for sale. The plaintiffs served a notice dated 5-4-1966 calling upon the defendants to execute the sale-deed and in response thereto on 28-5-1966 the defendants executed a supplementary agreement for sale after accepting Rs. 500/- and the possession of the remaining land was also handed over to the plaintiffs. Thus the plaintiffs paid an amount of Rs. 6000/- as part payment and came in possession of the total suit land. It was the case of the plaintiffs that they found some encumbrances to the extent of Rs. 5000/- and after deducting that amount the balance amount from the total consideration came to Rs. 11,951 / -. On payment of the said balance amount the defendants were to execute the sale-deed within 15 days. The plaintiffs claimed that they were ready to perform their part of the contract but the defendants evaded to execute the sale-deed and, therefore, the plaintiffs filed special Civil Suit No. 83 of 1968 on or about 6-9-1968. Prior to filing of the suit the plaintiffs were illegally and high-handedly dispossessed of the suit land by the defendants and during the pendency of the suit the defendant nos. 1 to 3 sold the suit land to defendant Nos. 4 to 6. The plaintiff No. 1 died during the pendency of the suit and his daughter was brought on record as plaintiff No. 4 in addition to his wife plaintiff No. 2. The defendants contested the suit. Defendant No. 1 filed Written Statement at exh. 15 and the same was adopted by the defendant Nos. 2 and 3 by filing pursis at exh. 16. The defendant Nos. 4 and 5 filed their Written Statement at Exh. 17 and the defendant No. 6 filed Written Statement at exh. 79. Defendant Nos. 1 to 3 admitted execution of the agreement dated 20-9-1965 but claimed that it was by way of security and it was not an agreement for sale. They further claimed that the supplementary agreement dated 28-4-1966 was also by way of security for interest without receiving any amount. They further stated that they had parted with the possession of the suit land and the names of plaintiff Nos. 2 and 3 were subsequently added by the plaintiff No. 1 in these agreements. The defendant Nos. 4 and 5 who were subsequently impleaded, admitted that they had purchased from defendant No. 1, 25 acres of the suit land on 10-7-1978 and they were bona fide purchasers and did not have the knowledge about the transaction between the plaintiffs and defendant Nos. 1 to

(3.) The consideration for the sale transaction to defendant Nos. 4 and 5 is Rs. 12,000/-whereas the consideration for the sale transaction to defendant No. 6 is Rs. 8000/-, thus making a total of Rs. 20,000/- as the sale price for the entire suit land of 50 acres and 39 gunthas as against the total consideration of Rs. 22,951/- agreed between the plaintiffs and defendant Nos. 1 to 3, way back in 1965. 3. The agreement for sale dated 20-9-1965 is at Exh. 85, whereas the supplementary agreement dated 28-4-1966 is at Exh. 86. The agreement for sale between defendant no. 6 and defendant Nos. 1 to 3 was executed on 8-5-1968 and the same was registered (Exh. 105) , whereas the sale-deed was signed on 18-9-1968 and registered on the next day (Exh. 107). On behalf of the plaintiffs, plaintiff No. 3 Jagannath Narayan shukla (PW 1) , plaintiff No. 2 Pramilabai chandulal Parandekar (PW 2) were examined, whereas for the defendants, defendant no. 1 - Abdul Karim (DW 1) was initially examined at Exh. 101 and was also examined at Exh. 121. In addition, defendant No. 6 baburao was examined as DW 2. It appears that none appeared for defendant Nos. 4 and 5, whereas Allisaheb Saheblal Sayyad -defendant No. 2 was examined at Exh. 123. On appreciation of the oral and documentary evidence adduced by the parties, the trial court held that the agreement at Exhs. 85 and 86 were not agreement for sale, but, in fact, they were signed by way of security, the plaintiffs could not prove that they were put in possession of the suit land on execution of these agreements and the plaintiffs were not entitled for specific performance and recovery of possession. On the issue of the plaintiffs being ready and willing to perform their part of the contract, the trial Court held that the said issue did not survive. A specific issue was framed, whether the sale of the suit property by defendant Nos. 1 to 3 to defendant Nos. 4 to 6 was hit by the doctrine of lis pendente lite under section 52 of the transfer of Property Act and it was answered in the affirmative by noting that the suit was filed on 26-8-1968, half of the land was sold to defendant No. 6 on 18-9-1968 and the remaining was sold to defendant Nos. 4 and 5 on 10-7-1978, though the agreement for sale in favour of these defendants was signed initially on 19-5-1975 and subsequently on 29-6-1977 as stated in the Written Statement at Exh. 74. The trial Court partly decreed the suit in the following terms:-