RAMJIBHAI VISHRAM PATEL Vs. ARJUN KARSAN PATEL

JUDGEMENT

(1.) THIS first appeal is directed against judgment and decree passed by the 2nd Joint Civil Judge, senior Division, Pune, on 28-8-1981 whereby the trial Court decreed the Plaintiff s suit for specific performance of the agreement of sale dated 7-9-1967 and passed a consequential order including delivery of vacant possession of portion of plot admeasuring 1000 sq. ft. to the Plaintiff.

(2.) ARJUN Karsan Patel, Respondent No. 1 herein is the original Plaintiff in the suit filed before the Civil Judge, senior Division, Pune. The suit was filed against Madhav gangadhar Bapat, Respondent No. 2 herein (original Defendant no. 1), Ramjibhai Vishram Patel, Appellant No. 1 herein (original Defendant No. 2), and M/s Geet Udhyog, Appellant no. 2 herein (original Defendant No. 3 ). The original plaintiff prayed for decree for specific performance of agreement of sale dated 7-9-1967 executed by original defendant No. 1 in respect of 3300 sq. ft. of the land from the plot No. 121 details of which were given in paragraph 1 of the plaint. The original Plaintiff prayed that out of 3300 sq. ft. of land agreed to be sold by original Defendant no. 1 to original Plaintiff, the land admeasuring 2300 sq. ft. is in actual use and occupation of the original plaintiff and in addition to that land to be included in sale deed, the land admeasuring 1000 sq. ft. should also be included. The original Defendant No. 1 as per the agreement dated 7-9-1967 agreed to sell 3300 sq. ft. of the land from plot No. 121 details of which have been given in paragraph 1 of the plaint and is also given in paragraph 1 of the agreement of sale for a consideration of Rs. 10,000/ -. A sum of Rs. 5500/- which was due from the original Defendant and payable to original Plaintiff was adjusted as earnest money and the remaining amount of Rs. 4500/- was payable in presence of the Sub-Registrar at the time of execution of the sale deed which was to be executed by the original defendants within six years i. e. before 31-8-1973. The agreement for sale further provided that original Plaintiff who was already in use and occupation of portion of land admeasuring 2300 sq. ft. for storing his goods upon execution of sale deed would retain the said possession as portion of the land sold to him. The remaining 1000 sq. ft. adjacent to the portion of 2300 sq. ft. which was in occupation of sanghavi Jethmal Kasturchand as tenant was to be given to the original Plaintiff on execution of sale deed since the said tenant Sanghavi Jethmal Kasturchand had right to retain possession upto 1973 only. It was further provided in the agreement that the original Defendant shall execute sale deed in favour of the original Plaintiff within the period prescribed and get the sale deed registered and if he fails to do it, he might get the sale deed executed through Courts and if original Plaintiff refused the sale deed executed, the agreement shall stand cancelled. The period of the said agreement of sale which was to expire at the end of August 1973 was extended from time to time by original Defendant no. 1 on 18-8-1973, 5-11-1973, 16-4-1974 and thereafter upto 15-1-1975. The original Plaintiff averred in the plaint that he has paid the remaining amount of Rs. 4500/- to the original Defendant No. 1 when he got the period of agreement of sale extended. The original Plaintiff further averred in the plaint that he had complied with all the terms which were required to be complied with by him. It is further averred in the plaint that the original Defendant No. 1 colluded with Defendant No. 2 and despite the agreement of sale executed by Defendant No. 1 in favour of the Plaintiff, had sold the property to original Defendant No. 2. The original Defendant No. 2 thus had not acquired any right and title. The original Plaintiff further averred in the plaint that the portion which was in possession of original defendant No. 1 excluding the portion in possession of original Plaintiff has been handed over to original defendant No. 3 for defeating the rights of original plaintiff.

(3.) THE original Defendant No. 1 filed his written statement contesting the claim of the original Plaintiff. The original Defendant No. 1 set up the defence that the agreement dated 7-9-1967 was not an agreement of sale, but was an agreement of security for money taken on loan by him and therefore, the suit for specific performance was wholly misconceived. The original Defendants Nos. 2 and 3 filed separate written statements and besides setting up the defence that the alleged agreement of sale dated 7-9-1967 was bogus, set up defence that they were bona fide purchasers of the entire plot No. 121 for valuable consideration without notice and therefore, the suit was liable to be dismissed against them.