RAJNI KUMAR MAHTO Vs. UMA DEVI BUDHIA

JUDGEMENT

(1.) This appeal at the instance of appellant defendant No. 1 has been preferred against the impugned judgment and decree dated 1-9-1993 and 13-9-1993 respectively passed in Title Suit No. 282 of 1987 by Shri Azad Chandra Shekhar Prasad Singh 6th Subordinate Judge, Ranchi whereby and whereunder the said suit for specific performance of the contract was decreed directing defendant Nos. 1 to 8 (i.e. appellant defendant No. 1 and defendant respondent Nos. 3 to 9 here in this appeal) to execute and register the sale deed in favour of the plaintiffs respondent in respect of the suit land mentioned in the schedule at the foot of the plaint after taking balance amount of consideration from them.

(2.) The plaintiffs respondent No. 1 and 2 have filed the said suit for specific performance of the agreement dated 30-12-1986 in respect of the suit land detailed in the schedule of the plaint directing the defendant Nos. 1 to 8 to execute and register the sale deed in favour of the plaintiffs respondent within a time to be fixed by the Court failing which the said sale deed may be executed and registered by the court for permanent injunction restraining the defendants for entering into an agreement with and or disposing of the suit land either by sale, gift, exchange or otherwise to any other person.

(3.) The case of the plaintiffs respondent is that defendant respondent Nos. 3 to 9 (defendant Nos.2 to 8 in the suit) are the owners of the suit land bearing R. S. plot Nos.2 and 3 situate in village Dumardagga P. S. and district Ranchi and plot Nos. 602, 603 and 610 situate in village booty. P. S. Sadar, District Ranchi and appellant defendant No. 1 is their duly constituted attorney empowered to deal with the suit properties and to execute agreement with prospective purchasers and to receive advance and to deliver possession to the prospective purchasers and to do all necessary things in connection therewith including execution and registration of the deed of sale in favour of the prospective purchasers or their nominee or nominees. The appellant defendant No.1 has offered to sell 0.38 acres of land out of plot No.2, 1.12 acres of land out of plot No.3 situate in village Dumardagga and also the levelled land out of plot No. 602, plot Nos. 603 and 610 situate in village booty @ Rs. 60,000/- per acre and he obtained Rs.3001 /- as earnest money from the plaintiff respondent No. 1 through her husband plaintiff respondent No. 2 on 30-12-1986 and in part performance of the agreement dated 30-12-1986 put the plaintiff respondent in possession of the suit land on 30- 12-1986 and since then the plaintiffs respondent are in possession thereof in part performance of the said agreement. Allegedly according to the terms of the agreement dated 30-12-1986 the appellant defendant agreed to deliver all relevant papers and documents relating to the suit land to the plaintiffs respondent and also made an endorsement on the agreement on receipt of further advance of Rs.67,500/- which was paid to him by the plaintiff respondent No. 1 through her husband and thus the defendants appellant has received a total sum of Rs. 70,501/- in connection with the said agreement. It is alleged that the plaintiffs respondent also invested a further sum of Rs,29,500/- from time to time as per the instructions of defendant appellant in getting the name of defendants respondent Nos. 3 to 9 mutated in the office of the State of Bihar and clearing the dues with respect to the arrears of rent of the suit plots and in meeting other expense in connection therewith and the defendant appellant as well as the defendants respondent Nos.3 to 9 aforesaid had agreed that the amount so spent by the plaintiffs respondent would be treated as further advance and shall be adjusted against the consideration amount and thus the plaintiffs respondent have invested a total sum of Rs. 1,00,000/- in relation to the agreement aforesaid. It is also alleged that defendant appellant had assured the plaintiffs respondent that necessary provision of land through P. W. D. road to the suit plots agreed to be sold to them would be made by him and in spite of repeated request in respect thereof necessary provision for at least 100 feet approach road from P. W. D. road to the suit land be sold to the plaintiffs respondent for ingress or egress has not been made by the defendant appellant and further the defendant appellant also did not deliver the documents of title with respect to the suit lands to the plaintiffs respondent. The further case of the plaintiffs respondent is that they were always read and willing and are still ready and willing to perform their part of the agreement and to pay the balance of the consideration money for getting the sale deed executed in their favour whereas the defendant appellant and defendant respondent Nos. 3 to 9 have failed and neglected to perform their part of agreement and have also not earned out their contractual obligations bound under the law and they have also not cared to apply for necessary permission for sale of the suit land before the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976. The plaintiffs respondent came to know that the defendant appellant and other defendants respondent with a mala fide intention are bent upon to sell the suit land to some other person or agency and plaintiff respondent No. 1 immediately got a notice published through her lawyer in the daily newspaper. The Ranchi Express on 10-9-1987 mentioning therein that plaintiff respondent No. 1 is the prospective purchaser of the suit land as per the subsisting agreement dated 30-12-1986 and thus the plaintiffs respondent alone have the right to purchase the suit land and non-else has got any right to enter into an agreement of sale in respect thereof and in spite of the said notice the plaintiffs respondent have come to know that defendant respondent Nos. 3 to 9 through the defendant appellant have executed a registered agreement on 17-9-1987 in favour of defendant respondent No. 10 through its Secretary defendant respondent No. 11 in respect of 10.90 acres of land out of R. S. plot No. 602 aforesaid which was the subject matter of the agreement dated 30-12-1986 aforesaid and defendant respondent Nos. 10 and 11 were in full know of the agreement dated 30-12-1986 between the plaintiffs respondent and the defendant appellant along with other defendants respondent and the action of the defendant appellant is mala fide and defendant respondent Nos. 10 and 11 had no right whatsoever to purchase any portion of plot No. 602 aforesaid and the agreement dated 17-9-1987 is illegal, void and not binding upon the plaintiffs respondent. Lastly it has been alleged that the plaintiffs respondent were always willing and ready to perform their part of the agreement and to pay the balance of the consideration money and to get the sale deed executed and registered in their favour but defendant appellant and defendant respondent Nos. 3 to 9 have failed to perform their part of the agreement with mala fide motive and the Advocate's notice served upon defendant respondent Nos. 10 and 11 also did yield no result and hence the necessity of this suit.