GULABSINGH HAMIRSINGH RAJPUT Vs. TARABAI

JUDGEMENT

(1.) THIS second appeal by Gulabsingh, one of the defendants in the suit, is from a decision of the Additional District Judge of Mandleshwar whereby he upheld the judgment and decree of the Court of Munsiff, Sanawad, giving to the Plaintiff sagarsingh a decree directing the defendants Bherusingh and Prithvisingh to execute and register a sale deed of a house in favour of the plaintiff and further directing these two defendants and the defendant Gulabsingh to deliver possession of the house to the plaintiff. Sagarsingh and Prithvisingh arc now dead and the respondents Tarabai and Krishnakunwarbai are their legal representatives.

(2.) THE plaintiff's case was that on or about 4-11-1946 the defendant Bherusingh and Prithvisingh entered into an agreement with him for the sale of a house belonging to them for Rs. 300/-; that in pursuance of this agreement, he paid to the defendants Rs. 225/- on 6-11-1946 for discharging a mortgage on the house; and that on the evening of 6-11-1946 he paid the remaining amount of Rs. 75/and obtained possession of the house from the defendants. The plaintiff further stated that the defendant Prithvisingh executed a sale deed on his behalf and on behalf of Bherusingh as his Mukhtyar and delivered it to the plaintiff; that subsequently when the plaintiff asked the defendants to register the sale-deed, they avoided it and ultimately on 16-11-1946 they sold the house to gulabsingh, executed and registered a sale-deed of the house in favour of gulabsingh and dispossessing the plaintiff from the house delivered the possession of the same to Gulabsingh; that thereupon the plaintiff applied to the Sub-Registrar, Sanawad, for the registration of the sale-deed in his favour; that the defendants did not appear before the Sub-Registrar and, therefore, the Sub-Registrar refused to register the sale-deed which the defendants had executed in favour of the plaintiff. On these allegations, the plaintiff claimed a decree against the defendants for the execution and registration of a fresh sale-deed in his favour and for possession of the house. Ho also claimed in the alternative damages amounting to Rs. 300/ -.

(3.) THE defendants Bherusingh and Prithvisingh admitted having received Rs. 225/from the plaintiff and having executed in his favour the sale-deed (Ex. P/1 ). They, however, pleaded that as the plaintiff failed to pay the remaining amount of consideration, namely Rs. 75/- Within four days as agreed, they sold the house to gulabsingh and executed and registered a sale-deed in Gulabsingh's favour. In his written statement, Gulabsingh denied all knowledge about the plaintiff's agreement with Bherusingh and Prithvisingh. He also denied that he had received any notice from the plaintiff and stated that he had purchased the house from bherusingh and Prithvisingh for Rs. 400/ -. Both the Courts below found that the plaintiff paid the full amount of consideration to the defendants Bherusingh and Prithvisingh: that these defendants executed a sale-deed in favour of the plaintiff, but did not get it registered and instead sold the house to Gulabsingh and executed and registered a sale-deed in favour of gulabsingh, Relying on Jhaman Mahton v. Amrit Mahton, AIR 1946 Pat 62 (A), the lower Courts rejected the contention advanced on behalf of the defendants that in view of the provisions of Section 77 of the Registration Act, the plaintiff's suit for specific performance was not maintainable. 3a. Mr. Chaphekar, learned counsel for the appellant did not, and indeed could not, dispute before me the findings of fact arrived at by the Courts below. He confined his arguments to the question of the maintainability of the plaintiff's suit for specific performance. It was contended that the defendants having executed a sale-deed in favour of the plaintiff, there remained nothing which the defendants could be compelled to perform; that, therefore, a suit for specific performance was not maintainable; that if the defendants had failed to appear before the Sub-Registrar, the plaintiff might have proved execution of the document before the sub-Registrar and if the Sub-Registrar had refused to register the document, the plaintiff should have appealed to the Registrar; and that if the decision of the registrar had been adverse to the plaintiff, he could have filed a suit under Section 77 of the Registration Act. Learned counsel placed reliance on Venkatasami v. Kristayya, ILR 16 Mad 341 (B) and Satyanarayana v. Venkatrao, AIR 1926 Mad 530: ILR 40 Mad 302 (C), to support his contention.