TINI LABORATORIES P LTD Vs. SYED BASHEER AHMED

JUDGEMENT

(1.) The appeal is directed against the judgment and decree dated 10.02.1993 in O.S.No.38 of 1985 on the file of the Subordinate Judges Court, Nellore.

(2.) The parties are referred to herein as they are arrayed before the trial Court.

(3.) The plaintiff filed the suit for specific per- formance of the contract of sale dated 15.07.1984 and for re-conveyance of the plaint schedule property to him. The plaintiff claimed that the first defendant agreed to sell the plaint schedule property to him for L 56,000/- under the suit agreement. The first defendant was the owner and possessor of the first item of plaint schedule and he also held an agreement of sale in his favour in respect of the second item of plaint schedule, for which he had cist receipts for five years. The plaintiff, therefore, believed the title of the first defendant to be the enjoyer of the second item of plaint schedule under the doctrine of part performance. The price of the property was agreed at L 40,000/- per acre and the offer of the first defendant to sell both the items of plaint schedule at L 56,000/- was accepted by the plaintiff by entering into the suit agreement dated 15.07.1984. The first defendant promised to obtain consent of the owner of the second item of plaint schedule by making him an attestor to the sale deed to be registered in favour of the plaintiff. While so, the first defendant sold the second item of plaint schedule on 09.03.1985 to the second defendant and the first defendant started forcing the plaintiff to purchase only first item of plaint schedule for the same price, which in fact had included the price of second item of plaint schedule also. The first defendant returned the advance of L 1,000/- through a demand draft dated 12.02.1985 along with an Advocates notice dated 12.02.1985 and on 17.02.1985, the plaintiff issued a notice returning the demand draft. The first item of plaint schedule was sold by the first defendant to the second defendant on 11.02.1985 itself, which was not mentioned in the notice given by the first defendant on the same day and the second defendant started construction in the plaint schedule land with the knowledge of agreement of sale in favour of the plaintiff and the plaintiff was always ready and willing to perform his part of contract. The first defendant played fraud and cannot resile from the contract and both the defendants are liable for the suit reliefs. Hence, the suit.