MUNNILAL Vs. BHAIYALAL

JUDGEMENT

(1.) THIS is Defendant's appeal against the decree, dated 4 -5 -1957, passed by Shri S. L. Sharma, Additional District Judge, Sagar, in Civil Appeal No. 131 -A of 1956, renumbered as 5 -A of 1957, reversing the decree passed by Shri T. P. Rawat, Civil Judge, Rehli, in Civil Suit No. 34 -A of 1955, dated 27 -10 -56.

(2.) THE third Respondent, Bhar sa(sic) was owner of certain fields bearing various Khasra numbers having an area of 29.29 acre as also a house. By an agreement, dated 30 -9 -1953 (Ex D. 11), he agreed to sell the said properly to the Appellants for a consideration of Rs. 5,300. Out of the agreed consideration, he accepted Rs. 250 as earnest money. Thereafter be refused to execute a sale deed in favour of the Appellants. Therefore, they filed Civil Suit No. 21 -A of 1953 for specific performance of the contract of sale on 2 -12 -1953. In the said suit, they impleaded the vendor, Bharosa alone, but did not implead Respondents 1 and 2, who claimed to have an earlier agreement of sale in respect of the same property, as per an alleged agreement, dated 209 -1953 (Ex. P -4) for a consideration of Rs. 5,100, out of which an amount of Rs. 600 had been paid as earnest money. The Appellants obtained a decree for specific performance of the contract of sale against the vendor on 19 -10 -1954 (Ex. D -5) in Civil Suit No. 21 -A of 1953. In execution of the said decree, Respondents 1 and 2 opposed delivery of possession, but possession was delivered inspite of their protest. Respondents 1 and 2 filed the present suit for possession of the suit property alleging that they held an earlier contract of sale, dated 20 -9 -1953 in their favour and that in pursuance of the agreement, possession had also been delivered to them. They had got a registered sale deed, dated 25 -1 -1954 (Ex. P -5) in their favour on payment of lull consideration of Rs. 5,100. As they were not impleaded by the subsequent contractees in their suit for specific performance of the con -tract of sale, they were not bound by the decree obtained against the vendor alone; and, as such, the delivery of possession effected in execution of that decree was not binding on the Plaintiffs. Further, the Plaintiffs alleged that the agreement of sale having been acted upon by effecting delivery of possession to them, they were not required to file a suit for specific performance; but could maintain a suit for possession as against the vendor and the subsequent contractees.

(3.) UPON an appeal filed by the Plaintiffs, the learned appellate Judge held that the agreement was entered into by the Plaintiffs on 20 -9 -1953; and as such, they were prior contractees entitled to claim specific performance as against the vendor, as also against the subsequent contractees. The delivery of possession effected in favour of the Defendants in execution of their decree in Civil Suit No. 21 -A of 1953 was held not binding on the Plaintiffs. The agreement sale in favour of the Plaintiffs having been performed by effecting delivery of possession, it was held that they were entitled to maintain a suit for possession and further that they were not required to file a suit for specific performance of the contract of sale. The sale deed executed in favour of Plaintiffs on 25 -1 -1954 during the pendency of the Defendants suit for specific performance in Civil Suit No. 21 A of 1953, was held not to attract the provisions of Section 52 of the Transfer of Property Act. Therefore, it was held that the Plaintiffs could claim possession on the basis of their completed title as evidenced by the sale deed.