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2010 DIGILAW 1024 (ALL)

Hazari Lal v. Ramesh Kumar

2010-03-29

PRAKASH KRISHNA

body2010
JUDGMENT Hon'ble Prakash Krishna,J. This is defendant's second appeal against the concurrent judgment of two Courts below. It arises out of Original Suit No. 327 of 1999 filed by Ramesh Kumar and others against Rakesh Kumar and others wherein Hajari Lal, the appellant herein, was defendant no.5. 2. The suit was filed for specific performance of a registered agreement to sell dated 24th of September, 1986 in respect of house Nos. 258, 259 and 260, Sadar Bazar, Allahabad. 3. The case of the plaintiffs was that on 24th of September, 1986 the defendant Nos. 1 to 4 agreed to sell their houses being house Nos. 258, 259 and 260 for a sum of Rs.55,000/- in favour of the plaintiffs. They came to Allahabad for the purposes of execution of sale deed. The plaintiffs purchased the necessary stamp papers and got the sale deed typed thereon. Then, it transpired that the owners of the houses proposed to sell only house No.258 in their favour and as such, the said sale deed was not presented for registration as it was not in respect of two other houses being house nos. 259 and 260. It also transpired that the owners sold away those houses two days earlier i.e. on 6th of July, 1999 to the defendant No.5, Hajari Lal, the appellant herein. When the plaintiffs insisted that house nos. 259 and 260 also be included in the sale deed, the owners refused to add them. Immediately, a suit giving rise to the present appeal was filed in the month of July, 1999. 4. The suit was contested on a number of pleas by the defendants and was ultimately decreed by the trial Court by judgment and decree dated 9th of April, 2007. The said decree has been confirmed in appeal being appeal NO.97 of 2007 by the judgment and order dated 11th of December, 2009. The present appeal has been filed as stated herein above by Hajari Lal who has purchased the two other houses being house Nos. 259 and 260 on 6th of July, 1999. 5. The said decree has been confirmed in appeal being appeal NO.97 of 2007 by the judgment and order dated 11th of December, 2009. The present appeal has been filed as stated herein above by Hajari Lal who has purchased the two other houses being house Nos. 259 and 260 on 6th of July, 1999. 5. In the memo of appeal as many as five substantial questions of law have been proposed but during the course of argument Sri Shashi Nandan, learned senior counsel assisted by Sri Sudeep Harkauli, Advocate, submits that the relief for specific performance of contract to sell being discretionary in nature should not have been granted by the Courts below. Elaborating the argument, he submits that, admittedly, the registered agreement in favour of the plaintiffs is dated 24th of September, 1986 and the suit was not filed within a reasonable period of time. 6. The Court was taken through paragraphs 15 and 16 of the plaint. Reliance was placed upon Smt. Chand Rani (dead) by LRs. Vs. Kamal Rani (dead) by LRs., AIR 1993 SC 1742 and Veeraya Ammal Vs. Seeni Ammal, AIR 2001 SC 2920 , paragraph 11 in particular. 7. Sri R.N. Singh, learned senior counsel for the contesting respondents, on the other hand, submits that no substantial question of law is involved in the appeal and the findings recorded by the two Courts below are based on correct appreciation of evidence on record. He submits that the appellant purchased the property in question with his wide open eyes that a registered agreement to sell is there in favour of the plaintiffs. 8. Considered the respective submissions of the learned counsel for the parties and perused the record. 9. The facts, as stated above, are not much in dispute. So far as the question of readiness and willingness on the part of the plaintiffs to fulfill the terms and conditions of the agreement in question is concerned, the suit was filed immediately in the month of July, 1999 as soon as the defendants refused to perform their part of agreement with regard to the execution of the sale deed after receiving full consideration amount of all the three houses. It has been found by the two Courts below that the plaintiffs have given the entire sale consideration amount. It has been found by the two Courts below that the plaintiffs have given the entire sale consideration amount. The argument is that the agreement in question is dated 24th of September, 1986 and suit for specific performance of contract to sell should have been filed within a reasonable period of time although time may not be essence of contract in respect of immovable properties. For this purposes, reference was made to paragraph Nos. 15 and 16 of the plaint. 10. On the facts of the present case, the said argument is not available to the present defendant appellant who has purchased the property in question knowing well about the existence of the registered agreement to sell in favour of the plaintiffs. He took a calculated risk. Indisputably, no agreement to sell was in his favour. At no point of time, the said agreement was repudiated by the defendant nos. 1 to 4. It has come on record that all of them were residents of other districts and had come to Allahabad to execute sale deed; and, as a matter of fact, the sale deed was typed, signed and executed on stamp paper but it was in respect of only one house i.e. house no.258 while the agreement was in respect of three houses being house nos. 258, 259 and 260. This itself is indicative of fact that at no point of time the agreement dated 24th of September, 1986 was repudiated by the defendants. In any view of the matter, the two Courts below have considered the entire facts and circumstances of the case and reached to a definite conclusion on appreciation of evidence produced by the parties that the agreement in question was subsisting during all this period up to the year 1999. 11. The learned senior counsel for the appellant could not point out any error or defect in the said appreciation of evidence. The view taken by the two Courts below is quite reasonable and plausible and as a matter of fact, is the only view which is possible in the present facts situation. 12. So far as the grant of discretionary relief is concerned, the said plea is hardly open to the present appellant who has purchased the property in dispute fully knowing about the existence of registered agreement in favour of the plaintiffs. 12. So far as the grant of discretionary relief is concerned, the said plea is hardly open to the present appellant who has purchased the property in dispute fully knowing about the existence of registered agreement in favour of the plaintiffs. As a prudent man, he should not have intervened in the transaction and should not have purchased the property in dispute. He has purchased the property in dispute with full knowledge of the existence of the agreement in question and does not deserve any sympathy from the Court. 13. The appeal is concluded by findings of fact. No substantial question of law is involved. The appeal is dismissed summarily.