VISHNU SWARUP SAXENA Vs. SHRIMATI KADIMBINI AND OTHERS

JUDGEMENT

(1.) THESE appeals arise out of two suits, one by Vishnu Swarup Saxena against Smt. Kadambini Devi and others (legal heirs of Shiv Dutt Jha) as well as Smt. Mohini Devi and others, for specific performance of contract and for declaration, filed in the court of Additional District Judge No. 2, Ajmer, and another by Smt. Mohini Devi against Vishnu Swarup Saxena, for eviction of the suit property on the ground of personal bona -fide necessity. Contest in these two appeals is between the same parties. The first appellate court in the second appeal arising out of the suit filed by Smt. Mohini Devi, has based its judgment on the judgment and decree assailed in first appeal and decreed the suit filed by Mohani Devi for eviction of Vishnu Swarup on the ground of denial of title. It is therefore deemed appropriate to consider and decide the first appeal on merits. Decision of first appeal would determine the fate of second appeal as well. Regular first appeal under Section 96 of the CPC is directed against judgment and decree dated 29.04.1985 passed by Additional District Judge No. 2, Ajmer, whereby suit for specific performance of the contract and declaration, has been dismissed. Plaintiff Vishnu Swarup in the plaint filed in that suit averred that late Shiv Dutt Jha S/o Shri Jeevaram Ji Jha, husband of defendant no. 1 Smt. Kadambini Devi and father of defendants no. 2 to 4, as 'karta' of the family, entered into an agreement with him on 10.02.1972 for sale of his whole property bearing AMC No. 26/386 situated at Ramganj Ajmer for consideration of Rs. 25,000/ -. Shiv Dutt Jha at that time took a sum of Rs. 12000/ - from Vishnu Swarup on 10.02.1972 as earnest money, and balance of Rs. 13,000/ - was agreed to be paid at the time of execution of sale -deed, within a period of six months. Vishnu Swarup was in occupation of one portion of said house as a tenant of said Shiv Dutt Jha. Remaining portion consisted of four shops. Defendant -respondent no. 6 Madan Lal was in occupation of three shops while defendant respondent no. 11 Raghuveer was in occupation of one shop. Shiv Dutt Jha at the time of agreement undertook to get all the aforesaid shops vacated and deliver vacant possession within six months and thereafter execute sale -deed in favour of Vishnu Swarup. Said Shri Shiv Dutt Jha executed an agreement on 10.02.1972 to that effect. As per the terms of aforesaid agreement, Shiv Dutt Jha agreed that in case he failed to transfer the property in the manner stipulated therein, Vishnu Swarup shall have right to get the same completed through the court of law at his cost and if he dies, then at the costs of his heirs or legal representatives. However, it was also mentioned in the agreement that if Vishnu Swarup failed to pay balance money within one month from service of notice, the earnest money paid by Vishnu Swarup shall stand forfeited. According to the stipulation contained in the agreement, Vishnu Swarup was required to pay rent only upto six months and thereafter he shall be deemed to be owner of the property and said Shri Shiv Dutt Jha shall cease to have any interest or right therein. Shri Shiv Dutt Jha, however, dishonestly and fraudulently sold/resold the portion of the above described property, which was in occupation of Vishnu Swarup, for a sum of Rs. 17,000/ - to one Smt. Mohini Devi, defendant -respondent no. 5, by means of registered sale -deed dated 11.04.1972 and also resold the remaining portion of the property consisting of four shops to defendant -respondents no. 6 to 10 for sale consideration of Rs. 15,000/ - by means of registered sale -deed dated 11.04.1972. Shri Shiv Dutt Jha died in the month of July, 1972, as such, defendant -respondents no. 1 to 4 as his heirs, are now legally bound to execute the sale -deed in favour of Vishnu Swarup on receipt of balance sale consideration. Vishnu Swarup had already performed his part of contract by paying Rs. 12,000/ - as earnest money on 12.02.1972 and was already in occupation of the property. He was always and is still ready and willing to perform the remaining part of the contract of purchase of the property, by paying balance amount of RS. 13,000/ - of sale consideration.

(2.) DEFENDANTS -respondents denied the contents of the suit by filing written statement. It was averred that no agreement was executed by late Shiv Dutt Jha in favour of Vishnu Swarup. It was further stated that Shiv Dutt Jha was within his right to execute the sale -deed vide Exhibits 2 and 3 in favour of the defendant -respondents no. 5 to 10. Those defendant -respondents by separately filing their written statement, also denied the contents of the suit and asserted that they purchased the property in question without previous knowledge of the agreement dated 10.02.1972 said to have been executed by late Shiv Dutt Jha in favour of Vishnu Swarup.

(3.) WHETHER according to the said agreement plaintiff was to pay rent for the portion of that property in his occupation to Shiv Dutt Jha for only six months from the date of the agreement and thereafter plaintiff himself was to be deemed the owner of the property and Shiv Dutt ceased to have any interest in the property?