SHANKAR LAL PANDEY Vs. TARACHAND KUPARIA

JUDGEMENT

(1.) THIS appeal is directed by the appellants/defendants being aggrieved by the judgment and decree dated 8-8-1996 passed by llth additional District Judge, Jabalpur in C. O. S. No. 414-A/94 decreeing the suit of the respondent No. 1 for specific performance of the contract.

(2.) THE facts giving rise to this appeal in short are that the respondent No. 1 filed a suit for specific performance against the appellants and respondent No. 2 contending that the appellant No. 1 for himself and on behalf of appellant No. 2 as her attorney entered in an agreement in his favour on 25-10-1986 whereby they agreed to sale their house No. 921 situated at 19th row Cantt, Jabalpur in consideration of Rs. 25,500/- and also received Rs. 5,000/- as part of consideration. As per terms on payment of the remaining sum by the respondent no. 1 on or before 22-1-1987 the appellants had to execute the registered sale deed. As per further averments the appellant No. 1 received Rs. 5,000/- out of remaining consideration on 19-3-1987 subsequent to the aforesaid date agreed for performance of the contract and extended the period up to April, 1988. Such house was in possession of respondent No. 1 as tenant since 1908 from the time of his forefathers. The endorsement for receiving the sum of Rs. 5,000/- on 19-3-1987 was also made by appellant No. 1 with his own signature. The respondent no. 1 with remaining sum went to appellant No. 1 in April, 1988 and requested him to execute the sale deed, on which instead to receive the payment and execute the sale deed appellant assured him saying that he will execute the same after some days along with some other sale deeds. Accordingly, the respondent no. 1 remained ready and willing to perform his part of the contract but the appellants did not perform their part and contrary to it without any intimation to the respondent No. 1 sold such house to respondent No. 2 and executed registered sale deed on 2-5-1988. The respondent No. 2 purchased the same having knowledge of said earlier transaction of respondent No. 1. Subsequent to it respondent No. 1 gave a notice dated 21-10-1989 to the appellant No. 1 calling him to perform their part of contract by executing the sale deed after taking remaining consideration and shown his readiness and willingness to perform his part of contract. It is also pleaded that respondent No. 1 being tenant in such house had a right of pre-emption to purchase the same. The sale deed executed by the appellants in favour of the respondent No. 2 is void. With these pleadings the prayer for specific performance is made.

(3.) IN common written statement of the appellants the execution of the aforesaid agreement and receiving the part consideration of Rs. 5,000/- on such date and Rs. 5,000/- on 19-3-1987 are accepted but it is denied that the agreed time to perform the contract was extended. They remained ready and willing to execute he sale deed on payment of remaining sum by the respondent No. 1 within the itipulated period. As per terms of the agreement the respondent No. 1 was also gound to pay the rent of accommodation. The respondent No. 1 in order to perform his part did not turn up with the remaining sum within the aforesaid period then the same was sold to respondent No. 2 by registered sale deed dated 2-5-1988. As the respondent No. 1 was also the tenant of appellants in some other premises, which had already, sold to some other person. As per further averments the appellants repeatedly asked the respondent No. 1 to get executed the sale deed by performing his part of contract but he failed in it. Accordingly they did not commit any breach on their part. With these pleadings the prayer for dismissal of the suit is made.