NANDKISHORE BIRAHIWALLA Vs. KUSHIRAM AGARWALLA

JUDGEMENT

(1.) This Court has heard the learned Advocate for the plaintiffs/appellants.

(2.) The plaintiffs/appellants filed a suit for specific performance of contract. The plaintiffs' case in short was that the defendant/respondent and one Hariram Agarwalla were the joint owners of the suit property each having moiety share in the same. Plaintiffs' further case was that one Basdeo Jhunjhunwalla was the thika tenant and owner of the structures in the suit property and from Basdeo Jhunjhunwalla the original plaintiff purchased the thika tenancy right and also the said structures on 4.3.1975 and the original plaintiff intended to purchase Mokarari Mourasi interest from the defendant and the proforma-defendant in the suit. The defendant/respondent being one of the superior landlords, on his own behalf and on behalf of the proforma-defendant, entered into an agreement for sale of their Mokarari Mourasi interest with the original plaintiff on 8.3.1975 at a certain consideration and deed of agreement was executed to that effect. The defendant/respondent received a certain sum of money from the original plaintiff on the date of the agreement. The plaintiffs' further case was that the defendant/respondent failed to deliver the title deeds to the plaintiff in terms of the agreement and subsequently the proforma-defendant filed a suit being T. S. No. 10 of 1975 against the defendant/respondent on the ground that the defendant/respondent had no authority to enter into an agreement on behalf of the proforma-defendant (Hariram Agarwalla) but the said suit was disposed of in terms of compromise wherein Hariram Agarwalla agreed to sell his half share to the plaintiff. The plaintiff sent a notice for completion of the transaction but the defendant/respondent did not comply with such request and thus the suit was filed by the original plaintiff.

(3.) The suit was contested by the defendant/respondent by filing a written statement denying the material allegations made in the plaint but admitted that the plaintiff paid a certain sum of money as earnest money. It was further alleged by the defendant/respondent that the Mokarari Mourasi interest of the land has vested in the State free from all encumbrances and as such the cause of action has abated.