MOHANLAL Vs. MISHRIMAL

JUDGEMENT

(1.) THIS appeal by the plaintiff raises an interesting question about the application of the doctrine of lis pendens to a sale after the institution of a suit for specific performance by another person in pursuance of an earlier agreement to sell made in his favour and arises from the following facts.

(2.) A plot of land situated in village Rani belonged to Tarachand who is alleged to have entered into an agreement to sell the said plot on his own behalf and of his two minor sons with plaintiff Mohanlal on 16th April, 1949, for Rs. 1500/- out of which Rs. 1000/ were then paid. This agreement to sell was renewed on 4th December, 1951, because the document of sale could not be executed in pursuance of the previous agreement. Subsequently Tarachand is said to have agreed to sell the same plot to Mishrimal respondent on 12. 10. 1949. Tarachand did not execute any sale-deed in favour of Mishrimal also and so the latter instituted a suit for specific performance of the agreement against Tarachand on the basis of the agreement dated 12. 10 49. The suit for specific performance was instituted on 3. 10. 53. During the pendency of this suit to which Mohanlal was not made a party, Tarachand executed a sale-deed in favour of Mohanlal on 1-10-54, and got it registered. Mishrimal's suit for specific performance was decreed against Tarachand and in execution of the decree he was resisted in delivery of possession by Mohanlal. Thereupon Mishrimal made an application under O. 21, R. 97 CPC to the executing court for the removal of the obstruction. Notice was given to Mohanlal and he submitted his reply that he was the true owner of the disputed plot on the basis of the sale-deed executed by Tarachand in his favour. The executing court found that Mohanlal was a representative of the judgment-debtor because he had purchased the property during the pendency of the suit for specific performance and as such dismissed the objection and possession was delivered to Mishrimal. Mohanlal again made an application for restoring possession of the property to him on the ground that he had purchased the property in pursuance of prior agreement and that the decree-holder was not entitled to take possession of the house which he had built on the plot after the sale in his favour. This objection was also dismissed by the executing court. Mohanlal then instituted the present suit for recovery of possession of the house and plot, and in the alternative for Rs. 11500/- for the cost of the building and Rs. 1500/- for the price of the plot. Tarachand was also impleaded as a party to the suit and a prayer for recovery of the amount paid to him and the cost of the building was also made against him.

(3.) THE learned District Judge did not consider the evidence of Shri Jamana Das Moolchand Ratnani and the two documents Exs, A and B proved by him, and this fact by itself vitiates the finding of the learned Judge in regard to the execution of Exs. 1 and 2 by Tarachand in plaintiff's favour. THE learned District Judge did not find the execution of the two agreements proved because in the sale-deed there was no mention of the agreements and the payment of Rs. 1000/- to the vendor and the handing over of the patta of the land to the vendee and further that the plaintiff did not make any mention of the said agreements in the reply which he had submitted on 1st May, 1956, on the application of the decree holder under O. 21 R. 97 G. P. G. THEse omissions in the opinion of the learned Judge were very significant and the explanation given by the plaintiff that at the time of preparing the reply in the execution proceedings he had shown the agreements to his counsel but he did not think it necessary to mention them was not satisfactory. Besides, it was not believable that the plaintiff who was a petty trader would have allowed the amount of Rs. 1000/- to be locked up for such a long period and he did not even call upon the vendor to execute the sale-deed in his favour. Shri S. P. Mayakar's evidence was not believed because he had a very modest practice and he did not maintain any instructions-book or any diary or account-book in which fees received by him for preparing the agreements would have been entered Shri Mayakar also did not pay any income tax, and, therefore, his evidence, having regard to all the circumstances of the case, could not be believed. Further, the learned Judge observed that it had not been satisfactorily explained why Tarachand visited Bombay on 16th April, 1949, when he was not doing any business there nor was he a R/o Bombay.