KRISHAN KANT Vs. DILIP KUMAR

JUDGEMENT

(1.) This civil first appeal under Section 96 CPC has been filed against the judgment and decree dated 15.12.1999, passed by the Additional District Judge No.2, Sikar dismissing the plaintiffs-appellants' (hereinafter 'the plaintiffs') suit for declaration, preemption, mandatory injunction, permanent injunction as also for specific performance of contract.

(2.) The facts of the case are that the plaintiffs filed a suit on 23.01.1985 stating that the suit property described in the plaint was in the ownership of the respondent-defendant No.1 (hereinafter 'the defendant') Dilip Kumar. It was stated that the defendant No.1 had a large chunk of land and had divided it into plots for disposal and use as residential property. It was stated that one of the plot belonging to the defendant No.1 had been sold to one Hanuman Prasad Sharma (east-northern side), another to the plaintiff No.2 Shyam Lal (south-western side), and yet another plot was sold to Patashi Devi (North-Eastern side). All the three sale-deeds were duly executed according to the plaintiffs by the defendant No.2 as the special power of attorney holder of defendant No.1. It was stated that under the belief that the defendant No.2 was generally authorised to sell the property of the defendant No.1, the plaintiff No.1 i.e. Mohani Devi (since dead and now represented through her LRs) wife of plaintiff No.2 Shyam Lal had purchased another parcel of land adjoining the land earlier purchased by the plaintiff No.2, Shyam Lal by way of advancing a sum of Rs.15,000/- duly receipted in cash by the defendant No.2. It was stated that subsequently an agreement to sell was also executed by the defendant No.2 on 28.08.1978 in respect of the plot for which the advance had been made over by the plaintiff No.1 to the defendant No.2 on or about 24.07.1978. The plot in question was then stated to have been merged by the plaintiffs with the plot earlier purchased by the plaintiff No.2 under a registered sale-deed and gated. It was further averred in the plaint that the defendant No.2 continued to assure the plaintiffs that a formal sale-deed would be duly registered on obtaining a power of attorney by defendant No.2 from defendant No.1, who at the relevant time was residing in USA. The matter was thereupon rested and was not perused in earnest. Hence while the matter of execution of a registered sale-deed in respect of the plot in issue remained pending but the actual peaceful possession of the plot continued with the plaintiffs allegedly having been handed over by the defendant No.2. Thereafter the plot was used as stated the plaintiffs inter alia for storing their building material, for tying their cattle as also for keeping certain household articles therein. It was stated that a water connection on the disputed plot in the name of the plaintiff No.2 was also obtained. It was then alleged that however in breach of the agreement to sell dated 28.08.1978 in respect of the suit plot, it had been sold to the defendant Nos.3 & 4 vide two sale-deeds dated 02.01.1985 and 05.01.1985 respectively duly registered on 19.02.1985. It was stated that thereafter attempts were made by the defendant Nos.3 & 4, the alleged subsequent purchasers, to dispossess the plaintiffs from their lawful possession of the plot in dispute in the circumstances detailed hereinabove. The disputes as to possession of the suit plot then led to criminal action and FIRs came to be lodged between the contesting parties. It was further stated that the plaintiffs had always been ready and willing to perform their part of contract under the agreement to sell dated 28.08.1978 and have the sale-deed in respect of the disputed plot prepared and executed and that in the event no further amount was due and outstanding as consideration towards the suit plot as the agreed consideration of Rs.15,000/- had been paid under receipt dated 24.07.1978. The plaintiffs yet stated that they would be ready to pay such further amount as warranted in the event the sale-deed of the plot were directed to be registered in the name of the plaintiffs in view of the agreement to sell dated 28.08.1978 and the sale-deeds executed in favour of the respondent Nos.3 & 4 thereafter cancelled. It was submitted that in the facts averred in the plaint, the plaintiff No.1 was thus entitled for a decree of specific performance qua the suit property. Alternatively, rights over the disputed plot were also sought to be asserted with reference to the Rajasthan Preemption Act, 1966 (hereinafter 'the Act of 1966') on the ground of the plot earlier purchased by the plaintiff No.2 having a common wall with the plot in dispute and also for easement of necessity. It was stated that it was the duty of the defendant No.1 to notify the plaintiff No.2 of the intended sale of the plot to the defendant Nos.3 & 4 prior to its actual sale with reference the provisions of the Act of 1966. The transfer of the disputed plot by way of registered sale-deed in favour of defendant Nos.3 & 4 was alleged to be to just defeat the rights of the plaintiff No.2, who was thus entitled to have the said transaction declared illegal and a further direction to have the said sale registered in the name of the plaintiff No.2. A decree of permanent injunction was also sought to protect the plaintiffs' purported lawful possession of the disputed plot.

(3.) On service of the plaint on the defendants, they filed their separate written statements of denial. In his written statement, the defendant No.1 stated that neither had the defendant No.1 executed a power of attorney in favour of the defendant No.2 in respect of the disputed plot, nor otherwise authorised him to deal with the said plot on his behalf in any manner whatsoever. It was submitted that if any amounts had at all been advanced towards the suit plot to the defendant No.2 it was without any authorisation by the defendant No.1. It was stated that the plaintiffs had not been in possession of the disputed plot as would be testified to from the averments made by the plaintiff No.2 himself as defendant in suit No.214/1981 instituted by Hanuman Prasad Sharma wherein it had been admitted by the plaintiffs No.2 that the disputed plot was the property of the defendant No.1. It was also stated that in a suit instituted by the plaintiff No.2 himself on 05.10.1983 against Deendayal and Hanuman Prasad Sharma in the court of Munsif Magistrate (No.168/1983) the land on the northern side of his house (the suit property) had been shown as open land and not as the plaintiff's own property purportedly purchased from the defendant No.1 as was sought to be propagated in the suit before the trial court. It was stated that the plaintiff No.2 was thus bound by the principle of estoppel and could not be allowed to take a different stand in the suit as laid before the trial court and against his written statement in suit No.214/1981 filed by Hanuman Prasad Sharma and / or to claim to be in possession. It was stated that the earlier three plots sold by the defendant No.1 were all sold under independent special power of attorneys conferred for a specific purpose on each occasion by the defendant No.1 on the defendant No.2 and that the defendant No.2 was never generally authorised to deal with or sale immovable property of the defendant No.1 nor could be construed to be impliedly authorised on the basis of earlier specific power of attorney limited to the authority to sale specific plots. It was submitted that the entire case set up by the plaintiffs was a plan to grab the land belong to the defendant No.1 as it was adjoining plot earlier purchased by the plaintiff No.2 from defendant No.1 under a registered sale-deed.