MADAN MOHAN Vs. GAURI SHANKAR

JUDGEMENT

(1.) IT is a very unfortunate case that two courts below have not even read and properly construed Ex. P/1 on which the suit was based, even though the suit was dismissed by the learned appellate Court, reversing the decree passed by the trial Court.

(2.) ON reading the pleadings, I have little doubt that plaintiff's main plea was founded on the doctrine of part-performance which is mentioned in categorical terms in para 3 of the plaint. On the basis of this plea, the plaintiff was merely entitled to a decree of permanent injunction to protect his possession although he laid a tall claim for specific performance of contract on the footing that Ex. P/1 was an agreement to sell the suit land. I have myself read the document with counsel for the parties but I am unable to satisfy myself that it is any thing else than a sale-deed. However, Ex. P/1 being an unregistered document, the sale must fail.

(3.) THERE is a very clear averment in the description itself that it was a "bikrinama" and further fact is that the full consideration of Rs. 600/- was duly paid for the suit land which is 5 bighas and odd in area. No doubt at all is left about its character in that parties meant it to be understood as a sale deed by using the expression "bech DIYA" which would not mean anything, but passing of the title along with passing of consideration; Shri R. D. Jain has laid great emphasis on the clause in the document -- "iska BAY MAIN AP KO KARA DUNGA". I do not read in this expression anything by which the document can be construed not as a sale deed, but a mere agreement to sell the land. I say so far the further reason that by the said document itself, it was stated that the possession of the suit land was also delivered to the vendee. No date is fixed for anything else to be done to complete the sale. The parties meant that the sale was complete with the execution of that document itself. Indeed, the very averment of passing of consideration and passing of title, two essential incidents to constitute a sale deed, being constituents of the document, there can be no escape from the conclusion that the document was nothing, but a sale deed and even if there was any promise to do any further act, that was not enforceable because the promise was as vague as anything.