JUDGMENT Kajnleshwar Nath, J. - This appeal is directed against the dismissal of the First Appeal against a decree for specific performance of a contract for sale. 2. Plaintiff-Respondent No. 1 Chhangur pleaded that he had entered into a contract for purchase of plot No. 203, area 4.71 acres of village Govind Para district Gonda, for Rs. 8,000/- for which he had paid Rs. 4000/- to Hanuman Prasad. Subsequently on 7-7-1973 Hanuman Prasad executed a written agreement in favour of Chhangur on receiving a further sum of 1,000/-; the parties agreed that on payment of the remaining amount of Rs. 3,000/- by Chhangu, a sale deed will be executed in his favour by Hanuman Prasad. 3. However, on 20-7-1973, Hanuman Prasad executed a registered sale deed of the same property for Rs. 10,000/- in favour of Defendant-Appellant Ram Baran and Defendant-Respondents Pradeep Kumar and Sushil Kumar, who are the sons of Hanuman Prasad Respondent No. 2. Hanuman Prasad, having refused to perform the contract for sale, Chhangur filed a suit on 8-10-1973 indicating his willingness and readiness to perform his part of the contract. 4. Hanuman Prasad, Ram Baran etc. contested the suit. They pleaded that before the alleged contract of sale dated 7-7-1973 with Chhangur, there had been a contract on 4-6-1973 by Hanuman Prasad with Ram Baran, Pradeep Kumar and Sushil Kumar for sale of the property so that Ram Baran, Pradeep Kumar and Sushil Kumar were bonafide transferees for consideration without notice. 5. Parties led evidence. The trial Court held that Hanuman Prasad had not executed any agreement to sell the property in favour of Ram Baran, Pradeep Kumar and Sushil Kumar and the document dated 4-6-1973 was a subsequently got-up one. He upheld the agreement in favour of Chhangur and held that Ram Baran etc. were not bonafide purchaser for value and indeed had notice of the agreement in favour of Chhangur. These findings were upheld by the learned Additional District Judge who observed that the so-called agreement, Ext. A-2, in favour of Ram Baran, Pradeep Kumar and Sushil Kumar, came into existence only on 10-7-1973, but was ante-dated to 4-6-1973. Thus there is a concurrent judgment of the two Courts below in favour of Chhangur for specific performance of contract for sale. 6.
A-2, in favour of Ram Baran, Pradeep Kumar and Sushil Kumar, came into existence only on 10-7-1973, but was ante-dated to 4-6-1973. Thus there is a concurrent judgment of the two Courts below in favour of Chhangur for specific performance of contract for sale. 6. The first point urged in this second appeal by the learned Counsel for the Appellant Ram Baran is that relief for specific performance of contract is a discretionary relief and since Chhangur had prayed for the alternative relief of recovery of Rs. 5,000/- with interest, the Court should not have granted specific relief of performance of contract. It is urged that no hardship would be caused to the Plaintiff if specific performance is refused. 7. It will be noticed at once from the relief in the plaint that the prayer for refund of Rs. 5,000/-, being the earnest money/part consideration, is set forth only in case the relief for specific performance is not granted; it is not set forth as a relief for alternative satisfaction of the claim for specific performance. Again Section 24 of the Specific Relief Act would show that where a suit for specific performance of a contract is dismissed, it shall bar the Plaintiff's right to sue for compensation for breach of contract. Order II, Rule 2 CPC requires a Plaintiff to include the whole of the claim which he is entitled to make in respect of the cause of action. It cannot, therefore, be said that the claim of alternative relief for refund of earnest money/part consideration should disentitle the Plaintiff to obtain a decree for specific performance of contract for sale. 8. Explanation (i) to Section 10 of the Specific Relief Act 1963 says that unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money. 9. Lastly, the learned Counsel for the Appellant admitted that no plea had been taken by the Appellant before the lower Court that the Plaintiff could be adequately compensated in terms of money on refusal to perform the contract specifically. He only relies upon the alternative relief, set forth in the plaint itself, but, as indicated above such claim does not prevent the passing of a decree for specific performance of a contract for sale of immovable property. 10.
He only relies upon the alternative relief, set forth in the plaint itself, but, as indicated above such claim does not prevent the passing of a decree for specific performance of a contract for sale of immovable property. 10. It is a question to be determined on the facts of each case whether a breach of contract can be adequately compensated in terms of money; and if that be so, it is absolutely necessary that not only a pleading to that effect must be set out by the contesting Defendant, but also that he must furnish adequacy of compensation. 11. Learned Counsel for the Appellant then urged that since the sale deed had already been executed by Hanuman Prasad in favour of Ram Baran, Pradeep Kumar and Sushil Kumar, a decree for specific performance cannot be granted unless the Plaintiff-Respondent Chhangur seeks and is awarded a decree for cancellation of that sale deed. In my opinion, there is no question of cancellation of the sale deed in favour of Ram Baran etc. The claim for specific performance of the contract for sale is enforceable not only against Hanuman Prasad, but also against his transferees, i.e. Ram Baran, Pradeep Kumar and Sushil Kumar. In other words, in execution of the decree for specific performance, not only Hanuman Prasad but also Ram Baran, Pradeep Kumar and Sushil Kumar will have to join as executants, as held in the case of Parmeshwar Mandal v. Mahendra Nath Tiwari 1961 Pat 466. 12. Learned Counsel for the Appellant has referred to the case of Jangi v. Board of Revenue 1981 All 191 to show that where two sale deeds are executed in respect of a property and are registered, the sale deed executed prior in time would be operative over that later in time. This decision is of no help to the Appellant because it is not a case of execution of two separate sale deeds between two distinct parties, but that of a sale deed which will be executed by the vendor and his subsequent transferees simultaneously in favour of the purchaser. 13. Learned Counsel for the Appellant has lastly referred to the case of Chandrika Chaubey v. Mst. Pyari 1983 ALJ 230 to show that the Court, in its discretion; may refuse specific performance of a contract for sale. The facts of that case are entirely different.
13. Learned Counsel for the Appellant has lastly referred to the case of Chandrika Chaubey v. Mst. Pyari 1983 ALJ 230 to show that the Court, in its discretion; may refuse specific performance of a contract for sale. The facts of that case are entirely different. A contract for sale of 2.70 acres of land had been entered into, but it was found that the transferor had only l/3rd share in it. It was further found that 2.53 acres of the aforesaid land had been exchanged in consolidation proceedings, so the vendor had only 0.17 acres to sell. In these circumstances, it was held that the proper exercise of discretion would be to refuse specific performance, and the vendee would be entitled to obtain refund of advance paid along with the interest thereon. There is no such difficulty in the present case. 14. The result of the findings is that the appeal is dismissed with costs with a further direction that in the sale deed, which would be ultimately executed by Hanuman Prasad in favour of Chhangur in execution of the decree for specific performance, the subsequent transferees, namely, Ram Baran Appellant, Pradeep Kumar and Sushil Kumar, Respondents Nos. 3 & 4, shall also join as executants.