ANWAR KHAN Vs. KALLA & OTHERS

JUDGEMENT

(1.) This appeal under Section 96 of the Code of Civil Procedure 1908 has been preferred by the plaintiff/ appellant against a judgment and decree dated 19th January 2001 rendered in Civil Suit No. 8-A/1997 by the Additional District Judge Sironj, district Vidisha M.P., thereby decreeing partly the suit for refund of earnest money of Rs. 1,00,000/- but rejected the prayer of specific performance of sale of agricultural land comprised in Survey No. 2697, having an area of 2.731 hector situated in village Sirong, distrct Vidisha (M.P.).

(2.) The facts, in short, are that on plaintiff having entered into contract for sale of an agricultural land mentioned above for consideration of Rs. 2,00,000/- with Gulab and Karodi, an agreement to sell was written. The agreement to sell was signed by one seller Karodi but Gulab, other co-owner refused to execute the agreement to sell. It is stated that the vendor Karodi and after his death, his heirs on repeated requests and even after service of notice to them for execution of sale deed in favour of the plaintiff, were not intending to execute the sale deed in his favour. On the other hand, the plaintiff/vendee was always ready and willing to perform his part of contract for execution of the registered sale deed in his favour. Karodi died prior to institution of the suit, as a consequence the plaintiff filed the suit against legal representatives. Some of them were minors who were represented by legal guardian. They totally denied the claim of the plaintiff and pleaded that no such consideration was received by Karodi. Another objection of the defendants is that other co-owner Gulab was not made party to the suit proceedings and the suit-land was in joint ownership of Gulab and Karodi and they were not agreed to sale entire land and therefore no agreement to sell the entire land which is not in ownership of Karodi could be executed by Karodi himself and another coowner could not be compelled without partition of the land under agreement to sell to transfer the land in favour of the plaintiff. Therefore, according to the defendants, the alleged agreement to sell was sham and fictitious. On this basis, it was prayed that the suit for specific performance of sale deed pertaining to the entire land which was under joint ownership may be dismissed with costs.

(3.) The learned trial court after framing the issues and recording the evidence concluded that the plaintiff failed to prove that he by oral request or by notice informed the vendor or his heirs for execution of sale deed of the suit property. It is further held by the court-below that the entire suit land which was joint property of Karodi and Gulab could not be sold by one co-owner, namely, Karodi and he was not competent to execute sale-deed in favour of the plaintiff, without consent of another partner. While holding so, the suit was dismissed, however, for alternative remedy for refund of earnest money same was granted in favour of the plaintiff. Being aggrieved by the findings of the court-below dismissing the suit, the plaintiff has come to this court by preferring the instant appeal.