JUBEDA IQBAL RAJKOTWALA Vs. MANGAL GANGADHAR GADALKAR

JUDGEMENT

(1.) Present appeal has been filed by the original plaintiffs challenging the concurrent Judgment and Decree passed in Special Civil Suit No.123/2003 by 2nd Jt. Civil Judge Senior Division, Ahmednagar dated 29.11.2004, whereby their suit for specific performance of the contract is dismissed, however, the defendants were directed to pay amount of Rs.2,90,000/- along with interest to the plaintiffs and the said decree was confirmed in Regular Civil Appeal No.171/2012 (First Appeal No.328/2005) by District Judge-13, Ahmednagar on 22.08.2017.

(2.) What is not in dispute is that the predecessors of the defendants viz. Chhabu, Gangadhar and Bharat were the owners of Sy.No.50/4/B and Sy.No.51/5 situated at Maliwada, Tq. Nagar, Dist. Ahmednagar.

(3.) Original plaintiffs had come with a case that Chhabu, Gangadhar and Bharat had agreed to sell the suit lands to their predecessor viz. Iqbal Rajkotwala in the year 1990. An agreement to sell to that effect was executed on 24.05.1990. The consideration was fixed at Rs.2,01,000/- per acre. Iqbal gave earnest amount of Rs.1,00,000/- to the brothers. It was contended that the possession was delivered as part performance of the agreement to sell. One of the conditions in the said agreement was, that the brothers would get permission to convert the land into non agriculture within 11 months and then the sale deed would be executed. However, they failed in getting permission within time. Then they had demanded amount to Iqbal to get the layout sanctioned. Accordingly Iqbal and plaintiffs had paid Rs.1,00,000/- on 06.07.1990, Rs.1,50,000/- on 17.10.2010, Rs.10,000/- on 14.03.1991, Rs.10,000/- on 01.12.1999 and Rs.20,000/- on 23.08.2001. Thus, in all amount of Rs.2,90,000/- has been paid by the plaintiffs towards consideration. It is further contended that inspite of giving sufficient opportunity to the brothers and the other defendants, who are the heirs of one of the brothers, to get the land converted into non agriculture, they avoided to execute the sale deed and therefore, the plaintiffs had sent notice dated 27.05.2002 calling upon them to execute the sale deed. Inspite of receipt of the notice they failed and therefore, suit has been filed for specific performance of the contract. In the alternative, the plaintiffs prayed for refund of the earnest amount together with interest and also amount of Rs.4,92,450/- as damages. Further, in the alternative, they had prayed that if the relief of specific performance is granted and then if the Court finds that they are not in possession, then possession should be delivered to them.