VINOD AGRAWAL Vs. BHARAT KUMAR LATHI

JUDGEMENT

(1.) Being aggrieved, the appellants have filed the aforementioned six appeals under Section 96 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 14.05.2001 passed by the II Additional District Judge, Bhopal in Civil Suit No. 22-A/1997 and 23-A/1997, and also, the common judgment and decree dated 05.10.2001 passed by the XI Additional District Judge, Bhopal in Civil Suit No. 45-A//2001, 46-A/2001, 47-A/2001 and 48-A/ 2001. By the impugned judgment and decree the aforesaid six civil suits seeking relief of specific performance of the agreement to sell dated 30.08.1990, were decreed by the trial Court. In addition to this, four sale deeds executed on 18.01.2001 by the defendants No. 2 to 5 in favour of defendants No. 7 to 10 during the pendency of the civil suits were also declared as null and void. The agreements to sell dated 30.8.1990 are six in number but with similar words by one intended seller in the name of different intended purchasers specifying different area with common attesting witnesses however the different suits were filed by the intended purchasers stating similar facts and raising the common issue. The two suits have been decided by the judgments and decree passed on one date i. e. 14.05.2001 and four suits have been decided by a common judgment and decree dated 05.10.2001. The counsel representing the parties present in the Court consented for analogous hearing because similar facts and common question of law is involved in all the six appeals, therefore, all the appeals are being decided by this common judgments.

(2.) In each civil suit, there were ten defendants. The names and ranks of these defendants are common in each civil suit. All the six appeals have been preferred by defendants No. 2, 3, 4, 5, 7, 8, 9 and 10 jointly. The defendant No. 1 Kailash Agrawal and defendant No. 6-State of M. P. in all the civil suits have been joined as respondents No. 2 and 3 in all the appeals. The respondent No. 1 in each of the appeals are plaintiff in respective suits, however, the appellants in all he appeals are defendants No. 2 to 5 and 7 to 10 and be referred hereinafter as defendants. Similarly respondent No. 1 be referred as plaintiff's and respondents No. 2 and 3 be referred as defendants No. 1 and 6, respectively in each of the appeals. It is made clear here that Defendant No. 1-Kailash Agrawal even after service of notice has failed to put his defence and remained ex parte in the trial Court. He has not led any evidence in suit and not preferred any appeal against the impugned judgments and decree. The plaintiff K. D. Maheshwari in F. A. No. 54/2002 has died during the pendency of the appeal, therefore, L. Rs. have been substituted.

(3.) The undisputed facts are that Smt. Sushila Bai wife of Late Shri Chandmal Agrawal resident of Sagar was the owner of the land bearing Khasra No. 546 area 9.03 acres, Khasra No. 547 area 15.5 acres and Khasra No. 548 area 3.48 acres; admeasuring total area 27.56 Acres situated at Village Godarmau, Tehsil Hazur, Dist. Bhopal. The aforesaid land was purchased by way of registered sale deed dated 29.04.1966 Ex. P-4A and her name was also mutated in revenue records as per Ex. P-3A. Smt. Sushila Bai died on 25.12.1992 while residing at Sagar leaving behind three sons namely Kailash Agrawal, Vinod Agrawal and Jagdish Agrawal and also two daughters namely Usha and Sangita. The aforesaid six civil suits were filed seeking a decree of specific performance of agreement to sell dated 30.8.90 allegedly executed by Smt. Sushila Bai against her LRs, the defendants No. 1 to 5. The State of M. P. was joined as defendant No. 6. During the pendency of the civil suits, four registered sale deeds were executed on 18.01.2001 by the defendants No. 2 to 5 in favour of individual purchasers, however, they were allowed to join on 23/3/2001 as defendant No 7 to 10. The defendant No. 1-Kailash Agrawal, the eldest son of Late Smt. Sushila Bai, has neither filed any written statement nor contested the six civil suits and also has not chosen to file any appeal challenging the judgment and decree passed by the Trial Court. It is undisputed that agreements to sell were executed in presence of plaintiff and not by the power of attorney holder. It is also undisputed that the six civil suits were filed by plaintiffs without the aid of any power of attorney holder, however, later on, one K. D. Maheshwari, who is plaintiff in the Civil Suit No. 48-A/2001, 46-A/2001 and 47-A/2001 as the power of attorney holder, to the respective plaintiff's. The Civil Suit No. 22-A/1997, filed by Bharat Kumar Lathi, was prosecuted by Pankaj Maheshwari as Power of Attorney holder of the Plaintiff. It is also undisputed that in the five Civil Suits, the plaintiffs have refrained themselves from entering into witness box to prove the contents, correctness, genuineness and validity of individual agreement to sell alleged to have been entered in between Smt. Sushila Bai and the individual plaintiff. It is also undisputed that notice in writing was not issued by the plaintiffs or by the power of attorney holders either to Smt. Sushila Bai or to her legal heirs insisting and asking performance of agreements to sell. The readiness and willingness by purchasing stamps for execution of the sale deeds and ready to pay the registration charges was also never conveyed in writing either by the plaintiffs or by power of attorney holders. Neither Smt. Shushila Bai during the life time nor her legal heirs were communicated in writing to remain present in the office of Sub-Registrar for execution and registration on the sale deeds discharging their obligation. It is also undisputed that Smt. Sushila Bai was an old, infirm and widow lady, as her husband, Shri Chandmal Agrawal was died in the year 1986.