Meghlal Ram v. Gyatri Devi Bagaria — 1997 DIGILAW 916 (PAT)

Judgment Gurusharan Sharma, J. 1. The plaintiff is the appellant. His suit for specific performance of contract in respect of the suit property, detailed in schedule of the plaint filed against the defendants has been dismissed by the impugned judgment and decree dated 11.3.1994, passed by the Third Subordinate Judge, Giridih, in Title Suit No. 1 of 1991/4 of 1993. 2. According to plaintiff, he was carrying on his business in the suit premises as tenant of the vendors of the defendants 1 to 4 since December 1966. By registered sale deed dated 28.7.1978, the defendants 1 to 4 purchased holding No. 463 including the suit premises for a consideration of Rs. 35000.00 . After purchase the defendants 1 to 4 had intention to sell the suit premises in order to earn profit. 3. The defendants 1 to 4 filed Eviction Suit No. 24 of 1979 under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 for evicting the plaintiff from the suit premises, which was decreed on 22.8.1989, by the Subordinate Judge, Giridih. Against the said eviction decree, the plaintiff preferred Title Appeal No. 16 of 1989, before the District Judge, Giridih. 4. During the pendency of the eviction matter to avoid unnecessary litigation, the plaintiff requested the defendant No. 1 to sell the suit premises to him by giving priority and considering him to be a needy person. In presence of Ram Prasad Bagaria, the full brother of the defendant No. 1, the defendants 1 to 3 finally settled and orally agreed on 15.6.1990 to sell the suit premises to the plaintiff for a consideration of Rs. 2,00,000.00 . It happened in presence of respectable persons; namely, Deoki Nandan Ram, Satyendra Mohan Ram and Sudhansu Mohan Sinha and after receiving the entire consideration amount by September, 1990, they agreed to execute and register the sale deed therefor. 5. Several title in the month of July, 1990, the plaintiff approached to the defendants 1 to 3 with ready money, in presence of witnesses, for executing and registering the sale deed but they always avoided the plaintiffs request on one pretext or the other. 6. 5. Several title in the month of July, 1990, the plaintiff approached to the defendants 1 to 3 with ready money, in presence of witnesses, for executing and registering the sale deed but they always avoided the plaintiffs request on one pretext or the other. 6. On the contrary, the defendants 2 and 3, at the instance of the defendant No. 1, on 31.7,1990 executed sale deed in favour of the defendant No. 5, at the instance of defendant No. 6, who was the husband of the defendant No. 5 and had knowledge of the oral agreement dated 15.6.1990 for a fictitious consideration of Rs. 40,000.00 only. In this way the defendants 1 to 3 practised fraud. On 31.7.1990 itself the plaintiff filed a.petition before the District Sub-Registrar requesting him not to register the sale deed, but he was asked to go to the civil Court. However the defendant No. 5 was impleaded as party respondent in the aforesaid Title Appeal No. 16 of 1989, which was a subsequently dismissed and Second Appeal in this Court by the tenant was also dismissed. 7. The plaintiff served a notice on the defendants to execute and register the sale deed, but it was not headed to. 8. Since there was a threat by the defendant No. 5, through the defendant No. 6 for evicting the plaintiff from the suit premises in the present suit a separate petition for grant of temporary injunction, restraining the defendants from executing the decree passed in Title Suit No. 24 of 1979 was filed. The plaintiff claimed to be always ready and willing to perform his part of the contract. He was admittedly in possession of the suit premises as a tenant and hence he had his first right to purchase the suit premises from the vendors of the defendant No. 5. 9. The defendants on the other hand denied any talk for sale of the suit premises between the plaintiff and the defendant No. 1. It was falsely alleged by the plaintiff that the defendant 1 to 3 orally agreed on 15.6.1990 to sell the suit premises to him for a price of Rs. 2,00,000.00 . The persons referred to in the plaint as witnesses were the henchmen of the plaintiff. 10. It was falsely alleged by the plaintiff that the defendant 1 to 3 orally agreed on 15.6.1990 to sell the suit premises to him for a price of Rs. 2,00,000.00 . The persons referred to in the plaint as witnesses were the henchmen of the plaintiff. 10. Since there was no agreement for sale of the suit premises between the plaintiff and the defendants 1 to 3, the allegation of repudiating the contract was a myth and there was no question of purchase of the suit premises by the defendant No. 5, with knowledge of the alleged agreement. The defendant No. 5 was a bona fide purchaser of the suit premises, for a valuable consideration, without any notice of the alleged bogus and false story of oral agreement between the plaintiff and the defendant No. 1. The defendant No. 5 acquired legal and valid title over the suit premises. 11. In absence, of any agreement for sale, there was no question of readyness and/or willingness on the part of the plaintiff to perform his part. There was no merit in the plaintiffs claim of any right of pre-emption in law. 12. The trial Court dismissed the suit. It was found that relationship between the plaintiff and defendants 1 to 3 was so much strained that it could not be believed that as alleged any of the defendants had gone to the shop of the plaintiff for any such oral agreement. The plaintiff miserably failed to establish by convincing evidence as alleged in paragraph 8 of the plaint that any oral agreement had taken place. Rather it was found that there was no agreement for-sale on 15.6.1990 in respect of the suit premises between the plaintiff and the defendants. The defendant No. 5, therefore, could not have knowledge of any such agreement for sale between the plaintiff and the defendants, before purchasing the suit property. There was no occasion of readyness and willingness on the part of the plaintiff to perform his part of such contract time the plaintiff possessed Rs. 2,00,000.00 in cash in his hand to offer to the defendants. The plaintiff failed to prove the oral agreement for sale of the suit premises at a consolidated consideration amount of Rs. 2,00,000.00 and at no point of time he possessed the said amount of cash in his hand to offer to the defendants. 13. 2,00,000.00 in cash in his hand to offer to the defendants. The plaintiff failed to prove the oral agreement for sale of the suit premises at a consolidated consideration amount of Rs. 2,00,000.00 and at no point of time he possessed the said amount of cash in his hand to offer to the defendants. 13. In order to prove the oral agreement for sale, the plaintiff examined P.Ws. 2, 3, 4 besides himself as P.W. 12. According to P.W. 2 the agreement was arrived at on 19.6.1990 and not on 15.6.1990 as claimed by the plaintiff. He further stated that the plaintiff had not made any request to the defendant No. 1 for executing deed of agreement for sale or to accept any advance for the proposed transaction. 14. P.W. 3 deposed to the effect that on 15.6.1990, the defendant No. 1, Banwari Lal Bagaria refused to execute any agreement and/or to receive any advance in connection with the oral agreement. 15. P.W. 4 also stated that the defendant No. 1, Banwari Lals refusal to execute any agreement and/or to receive any amount in advance from the plaintiff. 16. On perusal of the deposition of P.Ws. 2 to 4, I am of the view that the trial Court was correct in describing them to be chance, interested and partisan witnesses. 17. According to the plaintiffs evidence the oral agreement was entered into between him and the defendant No. 1 only and the defendants 2 and 3 were not parties thereto. This goes contrary to the plaintiffs case that the defendants 1 to 3 finally and orally settled and orally agreed to sell the suit premises on 15.6.1990 to him. There is direct contradiction between the deposition of P.Ws. 3 and 12 on the point of offer and acceptance of the price. P.W. 3 stated that when the defendant No. 1 disclosed the price at Rs. 2 lacs, the plaintiff replied that it was too high, but on the other hand, the plaintiff in his deposition as P.W. 12 stated to the contrary that he gladly accepted to pay Rs. 2 lacs, as demanded by the defendant No. 1. 18. The plaintiffs case, as it appears from perusal of Exts. 2 lacs, the plaintiff replied that it was too high, but on the other hand, the plaintiff in his deposition as P.W. 12 stated to the contrary that he gladly accepted to pay Rs. 2 lacs, as demanded by the defendant No. 1. 18. The plaintiffs case, as it appears from perusal of Exts. 1, 6, 8/D, 11/A and 11/B was not consistent as to whether the oral agreement for sale was concluded by the defendant No. 1 alone or by the defendants 1 to 3 together. The plaintiffs contention in this regard were inconsistent. In Exts. 6, 8/D and 11/A it was alleged that only the defendant No. 1 agreed to sell, whereas in Exts. 1, 6 and 11/b it was stated that all the defendants 1 to 3 together had agreed. 19. In paragraph 7 of the plaint, it was stated that during the eviction suit, the plaintiff requested, the defendant No. 1 to sell the suit premises in him, but contrary to this, in his evidence as P.W. 12 he stated that during the pendency of the eviction suit, it was the defendant No. 1, who approached him to purchase it, as he was ready, to sell. At that time the plaintiff did to agree to purchase, even on being approached by the defendant No. 1. He further deposed that when he lost the eviction suit, he sent his message to the defendant No. 1 through Rambabu Bagaria that he was ready to purchase and on that message the defendant No. 1 came to his shop on 15.6.1990 and the oral agreement for sale was finalised. 20. The plaintiff in his evidence admitted that in the last week of July 1990 he came to know that the defendant No. 1 would not sell the premises to him. However, he still waited for a long time and filed the present suit only 31.1.1991. In normal course, as soon as the plaintiff came to know that the defendant No. 1 repudiated the oral agreement and was not to sell the suit premises to him, he was required to file suit with a prayer for interim injunction restraining the defendants from making transfer to any body else. 21. In normal course, as soon as the plaintiff came to know that the defendant No. 1 repudiated the oral agreement and was not to sell the suit premises to him, he was required to file suit with a prayer for interim injunction restraining the defendants from making transfer to any body else. 21. Presuming that there was an oral agreement for sale wherein it was agreed to execute the transfer deed after receiving full amount of consideration by September, 1990, there was no occasion for the plaintiff to approach the defendant No. 1 earlier to the stipulated time fixed. It is alleged that the plaintiff approached the defendants several times in the month of July, 1990 and asked them to accept the consideration amount and execute the deed. 22. It appears that the plaint was amended and it was brought on record that on 22.6.1990 the plaintiff executed four agreements for sale of his personal properties for arranging a sum of Rs. 2 lacs to be paid to the defendants. Those were unregistered agreement and even then by July, 1990 the plaintiff could not raise Rs. 2 lacs and he was not in a position to tender the entire consideration amount to the defendants in the said month. 23. A fair rent proceeding was also initiated at the instance of the plaintiff against the defendants 1 to 4 and the matter went up to the revision stage before commissioner. 24. It was apparent that relationship between the parties was very much strained. The eviction matter at the instance of the tenant-appellant herein was carried up to the Apex Court. The relationship of the plaintiff with the defendants was therefore not cordial. 25. In the aforesaid premises of facts, in my opinion, the alleged oral agreement for sale was not conclusively proved by the plaintiff. 26. I, therefore, do not find any reason to interfere with the impugned judgment arid decree in this appeal. This appeal is, accordingly, dismissed, but without costs.