MOHAMAD ABDUL JABBAR Vs. LALMIA

JUDGEMENT

(1.) THIS is an appeal from the judgment and decree passed by Mr. M.D. Deoras, 3rd Subordinate Judge, 1st Class, Nagpur, on 22-12-1939 in Civil Suit No. 9-A of 1937. The suit was brought by plaintiff Mohammad Abdul Sattar (predecessor-in-title of the present appellants, except appellant 3) against Noorumiya (who died during the pendency of this appeal) and his two sons and a daughter who are now the legal representatives of Noorumiya as well as respondents in their own right.

(2.) THE suit was for specific performance of a contract of sale of certain immovable property and its possession. The suit is based on an isar chithi, Ex. P-2, executed on 16-1-1934 in favour of Mohammad Abdul Sattar. By this document the signatories purported to agree to sell some house property to Mohammad Abdul Sattar for a consideration of Rs. 10,000 to be made up as follows: Rs. 100, taken as earnest money on 16-1-1934, Rs. 1056, Khata balance, Rs. 7444, havala for two mortgage deeds dated 17-8-1921 and 28-9-1922 in favour of Abdul Aziz son of Abdul Ramhim and Rs. 1400, to be received before the Sub-Registrar at the time of execution. Rs. 10,000 Total.

(3.) MOHAMMAD Abdul Sattar did nothing till the last day of limitation, and on 15-1-1937 presented his plaint and asked for the relief of specific performance against the defendants-respondents in this matter. Defendants 1 to 3 denied the allegations and pleaded fraud and defendant 4 denied that, she made her thumb mark on the document. All the four defendants further pointed out that by notification No. 1475-1075-XII, dated 20-4-1937, Provincial Government had started land acquisition proceedings in respect of this house and site and that the suit for specific performance was, therefore, not maintainable. Even though warned in this manner, Mohammad Abdul Sattar did not choose to amend his plaint and ask for damages either simpliciter or even in the alternative. Of course his claim to have specific performance precluded at the moment a relief by way of damages for if he elected to have damages, he could not go on asking for specific performance. He contented himself by saying: Plaintiff does not know if any proceedings for the acquisition of any land in suit is started under the Land Acquisition Act, Even if any such proceedings are going on, it would not affect plaintiff's right to get the specific performance. The compensation money would go to the person who would be found by the Government entitled to get the same.