FAQUIR CHAND Vs. SONA DEVI

JUDGEMENT

(1.) Challenge in the present appeal has been directed against judgments and decrees passed by the Courts whereby suit for specific performance of agreement to sell dated 19.12.1996 filed by the respondent- plaintiff was decreed by the trial court vide judgment and decree dated 22.1.2008 that came to be affirmed in appeal filed by unsuccessful defendants-appellants.

(2.) The trial court accepted plea of the respondent-plaintiff that agreement dated 19.12.1996 was executed by Sh.Devi Dayal on behalf of Smt. Kaushalya and he has proved her readiness and willingness to perform her part of the agreement, therefore, entitle to specific performance of the agreement. The plea raised by the appellants-defendants No. 3 and 4 that they are bona fide purchasers in good faith for consideration and entitle to protection under Section 41 of the Transfer of Property Act (in short "TP Act") in respect whereof additional issue No. 1-A was framed by the trial court, was rejected.

(3.) Counsel for the appellants would argue that on 3.2.1997, the respondent-plaintiff filed a suit for permanent injunction restraining defendants No. 1 and 2 from alienating the suit land on the allegations that they are intending to alienate the suit land despite agreement dated 19.12.1996 having been executed in favour of the plaintiff-respondent. It is argued that though as per agreement propounded by the respondent- plaintiff, the stipulated date for execution of the sale deed was 15.5.1997 but since defendants No. 1 and 2 were allegedly threatening to alienate the suit land, cause of action to file suit for specific performance was available to the plaintiff at the time of institution of suit for permanent injunction on 3.2.1997, therefore, suit filed by the respondent-plaintiff is liable to be dismissed being barred under Order 2 Rule 2 of the Code. In the alternative, it is argued that as the respondent-plaintiff withdrew the suit for injunction in June 1997 without seeking permission to file a suit for specific performance, the instant suit is not maintainable under order 23 Rule 1 of the Code.