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2018 DIGILAW 755 (ORI)

Ananda Chandra Gadabad v. Prafulla Kumar Mohanty

2018-08-21

D.DASH

body2018
JUDGMENT : D. Dash, J. 1. The unsuccessful defendant nos. 1 to 3 have filed this appeal under section 96 of the Code of Civil Procedure (for short, called as "the Code") assailing the judgment and decree passed by the learned Civil Judge (Sr. Divn.), Bhubaneswar in T.S., No. 195/89-1. Original appellant nos. 2 and 3 having died during pendency of this appeal, their legal representatives have come on record and the are pursuing this appeal joining with the original" appellant no. 1. Respondent no. 1 as the plaintiff had filed he sui for specific performance of contract and permanent injunction which has been decreed. The defendants have been directed to execute the sale deed in favour of the plaintiff with respect to the property described in schedule 'C' of the plaint within a stipulated lime on receipt of balance consideration of Rs. 96,400/-. The defendant nos. 1 to 3 having been aggrieved by the said judgment and decree are now before this Court in this appeal. 2. For the sake of convenience, in order to bring in clarify and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiff's case is that the defendant: nos. 1 to 3 first on 15.01.86 executed one registered general power of attorney in favour of plaintiff no. 1 authorizing the plaintiff no. 1 to do all the needful for the purpose of sale of the landed property described in schedule 'A' of the plaint as also to arrange the purchasers fixing consideration thereof. The total area of land is Ac. 3.385 decimals under five plots in full. It has been indicated in the said deed of power of attorney that the plaintiff would arrange the purchasers for them for sale of the above property, purchase the stamp paper on their behalf, present the sale deeds executed by the vendors before the registering authority and get the sale deeds registered. It is the case of the plaintiff that when the process of arranging the purchasers was going on and the plaintiff was very much on the job, the defendant nos. 1 to 3 being badly in need of money, gave a proposal for execution of an agreement of sale of the land in respect of said 'A' schedule land in favour of the plaintiff and the plaintiff readily agreed to the proposal. 1 to 3 being badly in need of money, gave a proposal for execution of an agreement of sale of the land in respect of said 'A' schedule land in favour of the plaintiff and the plaintiff readily agreed to the proposal. Pursuant to the same. On 27.01.86 an agreement for sale between the parties came into being. The consideration for sale of schedule "A' land was agreed upon at Rs. 1,65,000/-. It is stated that advance consideration of Rs. 12,000/- was paid to the defendant nos. 1 to 3 on 27.1.86, who have executed a receipt as acknowledgement of the said payment towards advance consideration. The plaintiff states to have been delivered with the possession of the schedule 'A' land by the defendant nos. 1 to 3 and as such continuing to possess the same. It was agreed that the sale of the entire land would be completed within a period of six months from the date of execution of the agreement i.e. on or before 27.7.86. So the plaintiff has pleaded that the period of performance of contract was Valid up to 27.07.80. It had been agreed between the parties that the balance consideration would either be paid at time or in instalments and the defendant nos. 1 to 3 would be executing the sale deeds in favour of the plaintiff or any other persons as per his instruction, as and when so required. It is further stated that on 19.5.87, a sum of Rs. 3,600/- had been paid to the defendant nos. 1 to 3 as part of the balance consideration and they have granted a receipt to that effect. The plaintiff further claims to have paid a sum of Rs. 2,000/- and Rs. 1,000/- to the defendant nos. 1 to 3 on 4.8.87 and 8.4.88 through defendant nos. 2 and 1 respectively. These payments are said to have been made through cheques. It is further stated that on 20.04.88, the defendant no. 2's son Minaketan on behalf of the defendant nos. 1 to 3 had also received a sum of Rs. 1,000/- by cheque. The plaintiffs case is that he has paid a sum of Rs. 46,600/- to the defendant nos. 1 to 3 towards the agreed consideration at different time during the period ranging from 27.1.86 till 8.4.88. The specific case of the plaintiff is that when defendant nos. 1 to 3 had also received a sum of Rs. 1,000/- by cheque. The plaintiffs case is that he has paid a sum of Rs. 46,600/- to the defendant nos. 1 to 3 towards the agreed consideration at different time during the period ranging from 27.1.86 till 8.4.88. The specific case of the plaintiff is that when defendant nos. 1 to 3 had agreed to perform their part of the contract on each occasion and since they have gone on receiving the part consideration, the period as given in the agreement for the purpose of its fructification by way of execution of a sale deeds and its registration, has to be deemed to have been extended till 20.4.88, if not thereafter. The plaintiff has stated that the defendant nos. 1 to 3 had again during said period of subsistence of the agreement for sale and the general power of attorney agreed that the plaintiff if would arrange purchaser/s for sale of the property described in schedule 'A', then the defendant nos. 1 to 3 would execute sale deeds in favour of those purchasers as would be arranged and identified by the plaintiff on receipt of consideration. It is stated that accordingly, the plaintiff arranged four purchasers and the defendant nos. 1 to 3 in pursuance of the agreement have executed sale deeds in favour of those four persons namely, Jagabandhu Mishra on 21.7.86 for consideration of Rs. 6,000/- for sale of land measuring Ac. 0.108, decimals and Ac. 0.009 decimals out of plot nos. 2710 and 2711 respectively which are from out of the property described in schedule 'A'. On that day they executed sale deed in favour of Bishnu Charan Sahu on receipt of consideration of Rs. 6000/- for the property measuring Ac. 0.117 decimals from out of plot no. 2710. The defendant nos. 1 to 3 on that day have executed sale deed in favour of Subhadra Modi on receipt of consideration of Rs. 5,000/- for the properties measuring Ac. 0.103 decimals also from the plot no. 2710. Again on 19.5.87, the defendant nos. 1 to 3 executed a sale deed in favour of one Nilima Ghosh for consideration of Rs. 5000/- for the property measuring Ac. 0.103 dec. under plot no. 2710. All these purchasers had been brought by the plaintiff and these defendant nos. 0.103 decimals also from the plot no. 2710. Again on 19.5.87, the defendant nos. 1 to 3 executed a sale deed in favour of one Nilima Ghosh for consideration of Rs. 5000/- for the property measuring Ac. 0.103 dec. under plot no. 2710. All these purchasers had been brought by the plaintiff and these defendant nos. 1 to 3 have accordingly sold different parcels of land as afore stated to them as desired by the plain tiff. It is further stated that on 19.05.1987, another agreement was executed between the plaintiff on one hand and the defendant nos. 1 to 3 on the other to the effect that in case the plaintiff fails to arrange the purchasers for the rest part of the land as described in 'A' schedule within six months i.e. by 31.10.87, they would cancel the power of attorney. Accordingly, the plaintiff contacted the defendant nos. 4 to 23 for sale of the rest part of the 'A' schedule land which is described in schedule 'C' of the plaint but since there was delay, the plaintiff nonetheless went on paying part consideration money to defendant nos. 1 to 3. In the entire period, the plaintiff claims to have paid a sum of Rs. 46,600/- and Rs. 22,000/- towards the sale of land as given in schedule 'B' of the land in total amounting Rs. 68,600/-. The plaintiff being always ready and willing to purchase the land as at schedule 'C' on payment of balance consideration of Rs. 96,400/- had been requesting the defendant nos. 1 to 3 to execute such sale deed which they purposely avoided on some pretext or other; Therefore, the plaintiff issued a notice by registered post on 15.6.89. The defendant nos. 1 to 3 did not accept the same but after coming to know of the said facts, on 15.4.89 they cancelled the power of attorney which they had executed in favour of the plaintiff on 15.1.86. On enquiry the plaintiff ascertained that the defendant nos. 1 to 3 have sold part of the schedule 'C' land better described in schedule 'D' of the plaint to the defendant nos. 4 to 23 during the period commencing from 17.6.88 on up till 13.2.89 under different sale deeds. It is the case of the plaintiff that these defendant nos. On enquiry the plaintiff ascertained that the defendant nos. 1 to 3 have sold part of the schedule 'C' land better described in schedule 'D' of the plaint to the defendant nos. 4 to 23 during the period commencing from 17.6.88 on up till 13.2.89 under different sale deeds. It is the case of the plaintiff that these defendant nos. 4 to 23 have never been delivered with the possession of their respective purchased land and they had the knowledge of the agreement for sale to be there in respect of said land in favour of the plaintiff. In view of the Agreement for sale dated 22.2.86 and the subsequent agreement dated 19.5.87, the plaintiff asserts to have been in possession of the suit land. A.S the defendant nos. 1 to 3 failed to perform their part of he contract and then the defendant nos. 4 to 23, the direct purchasers from he defendant nos. 1 to 3, threatened the plaintiff to dispossess him from schedule 'D' land, the plaintiff filed the suit. 4. The defendant nos. 1 to 3 in their written statement while traversing the plaint averments have admitted that on 15.1.86 they have executed a general power of attorney in favour of the plaintiff so as to obtain permission from the Bhubaneswar Development Authority for sale of schedule 'A' land, arrange purchasers, purchase stamp paper and present the sale deeds for registration. They however deny to have executed any agreement for sale in favour of the plaintiff on 27.1.86. It is alleged that by taking their signatures on some blank papers by mis-representing the facts, the plaintiff has fabricated the said agreement for sale, purported to have been executed by them on 27.1.86. It is stated that the plaintiff had no financial capacity to purchase the land and he was simply a power of attorney holder in the matter of bringing the purchasers for sale of the land. They also state that there was no reason for them to execute an agreement for sale just after twelve days of execution of the deed of general power of attorney. Such agreement for sale is said to have been created by the plaintiff for illegal gain. These defendants have admitted to have received Rs. They also state that there was no reason for them to execute an agreement for sale just after twelve days of execution of the deed of general power of attorney. Such agreement for sale is said to have been created by the plaintiff for illegal gain. These defendants have admitted to have received Rs. 12,000/- from the plaintiff on 27.1.86 towards the consideration amount that he had collected from Jagabandbu Mishra and accordingly they state to have executed the sale deeds in favour of Jagabandhu Mishra on 21.7.86 and also in favour of Bishnu Charan Sahu and Subhadra Modi on 19.5.87 as per instruction of the plaintiff. It is further stated that on the plea of executing agreement against such advance money of Rs. 12,000/-, the plaintiff had obtained their signatures on blank papers which have later on been used for the purpose of bringing out an agreement for sale in his favour. They have also admitted to have received Rs. 15,000/- from the plaintiff on 4.6.86 towards advance consideration for the purpose of sale of land to the intending purchasers as arranged by the plaintiff and accordingly, they have executed registered sale deeds in favour of Neelima Ghose, Pankajini Nayak, defendant no. 4 covering said advance consideration of Rs. 12,000/- received by them on 21.7.86 from the plaintiff. They also stated to have executed the registered sale deed in favour of defendant nos. 5 and 6 covering the advance consideration of Rs. 3,600/- taken on 19.5.97, they state to have executed registered sale deed in favour of defendant no. 7 on 18.11.88. In other words, they state that said advances which these defendant nos. 1 to 3 have received from the plaintiff after the first phase of execution of sale deeds, had not been paid by the plaintiff for purchase of residue land by him but for those purchasers as above and receiving as such from them who have therefore been fed with the grant towards the payment made by them through the plaintiff. 5. It is their case that they had received a sum of Rs. 2000/- on 4.8.89 and Rs. 1000/- as advance and accordingly they have executed registered sale deed in favour of defendant no. 10 on 28.11.88. It has been said that Minaketan is not the son of defendant no. 2 and they have never received any sum of Rs. 5. It is their case that they had received a sum of Rs. 2000/- on 4.8.89 and Rs. 1000/- as advance and accordingly they have executed registered sale deed in favour of defendant no. 10 on 28.11.88. It has been said that Minaketan is not the son of defendant no. 2 and they have never received any sum of Rs. 1,000/- on 20.4.1988 through that Minaketan as alleged by the plaintiff. They state to have executed the sale deeds in favour of the purchasers arranged by the plaintiff in pursuance of power of attorney dated 15.01.86 and had received the advance consideration from the intending purchasers as also the rest. It is their specific case that they have not received any money from the plaintiff pursuant to the agreement for sale dated 27.1.86. It is stated that the plaintiff failed to perform said his part of contract within the time stipulated and he had never shown his readiness and willingness. Therefore, these defendants have pleaded that the plaintiff is not entitled to a decree of specific performance of contract. They also state to have not received any notice. It is the further case of the defendant nos. 1 to 3 that there was agreement with the plaintiff on 19.5.97 by granting six months time to him up till 31.10.87 to bring purchasers for sale of land measuring Ac. 2.842 decimals. They admitted that on 15.4.89, they have cancelled the power of attorney dated 15.1.86 which was in favour of the plaintiff. They stated to have sold CD' schedule property in favour of defendants nos. 4 to 23 as per the arrangement made by the plaintiff and the remaining land has been agreed to be sold to Gandharba Pradhan for which they have already executed an agreement for sale dated 7.4.89, pursuant to which they have also delivered possession of the land to said Gandharba. These defendants deny to have given possession of the suit land or any part thereof at any 'point of time and thus they assert that the plaintiff had never been nor is in possession of the suit land or any part thereof, at any time as claimed by him. They have stated that since the entire properties have been sold, the plaintiff is not entitled to any relief whatsoever. With all these, they have prayed for dismissal of the suit as laid. 6. The defendant nos. They have stated that since the entire properties have been sold, the plaintiff is not entitled to any relief whatsoever. With all these, they have prayed for dismissal of the suit as laid. 6. The defendant nos. 4 to 10 and 21 to 23 have filed joint written statement when defendant nos. 11 to 20 have filed their written statement separately. All these defendants have supported the case of defendant nos. 1 to 3. 7. The trial court on the basis of the rival pleadings has framed the following issues: 1. Is the suit maintainable in the eye of law? 2. Has the plaintiff any cause of action to bring the suit? 3. Is the suit bad for non-joinder of necessary parties? 4. Is the suit bad for misjoinder of cause of action? 5. Has the plaintiff valued the suit property and has paid necessary court fees thereon? 6. Is the plaintiff entitled for a decree of specific performance of contract as prayed for? 7. Are the defendant nos. 4 to 23 bonafide purchasers of value without notice of previous agreement for sale? 8. Is the plaintiff entitled for a decree of permanent injunction as prayed for? 9. To what other relief if any plaintiff IS entitled? 8. Taking up issue nos. 6, 7 and 8 for decision on examination of evidence finding has been recorded as under : "xxx xxx xxx In view of my aforesaid discussion I have also conclude that Ext. 2 is the veritable document and there is no suspicious circumstance to relay Ext. 2 on any count. Accordingly the plaintiff has proved that he has paid Rs. 46,600/- to defendant nos. 1 to 3 as part consideration in view of the agreement for sale dt. 27.01.1986 under Ext. 2." It has next been found that the purchasers i.e. defendant nos. 4 to 23 in respect of the 'D' schedule property are not the purchasers having no knowledge of the existence of agreement for sale under Ext. 2. Therefore, they do not stand to receive the protection as available under section 19(b) of the Specific Relief Act to bonafide purchasers for value without knowledge of any prior agreement for sale herein the case, Ext. 2. At the ultimatum, the defendants have been directed to execute the sale deed in favour of the plaintiff in relation to schedule 'C' property on receipt of balance consideration of Rs. 2. At the ultimatum, the defendants have been directed to execute the sale deed in favour of the plaintiff in relation to schedule 'C' property on receipt of balance consideration of Rs. 96,400/-. In view of aforesaid, the following order has been passed: "That he suit of the plaintiff is hereby decreed on contest against the defendant Nos. 1 to 3 and on ex parte against the other defendants with cost. The defendants are directed to execute the sale deed in favour of the plaintiff within two months hence on receipt of the balance consideration money of Rs. 96,400/- in relation to 'C' schedule property failing which the plaintiff shall be at liberty to take recourse to law." 9. Learned counsel for the appellants submitted that the finding of the court below about the existence of an agreement for sale which as per the case of the plaintiff has come into being only after 12 days of the execution of the general power of attorney is not the outcome of just and proper appreciation of evidence when the evidence on record do not at all go to show any need or necessity for the same. He further submitted that viewing the facts of the case of the plaintiff with all other circumstances and developments which have taken place, under no circumstance, the trial court could have decreed the suit for specific performance of contract. It is his submission that the entire case of the plaintiff is misconceived. He therefore urges to set aside the judgment and decree passed by the trial court and non-suit the plaintiff. 10. Learned counsel for the respondent no. 1 submitted all in favour of the aforesaid findings recorded by the trial court. According to him, such finding are based on proper appreciation of evidence both oral and documentary and the decision having been rendered keeping In view and In consonance with the law holding the field, there is no scope to upset the same in this appeal. 11. The first agreement for sale purported to have been executed by the defendant nos. 1 to 3 in favour of the plaintiff is dated 27.1.86 and has been admitted in evidence and marked as Ext. 2 and that is subsequent to the execution of the registered deed of general power of attorney by those very defendant nos. 11. The first agreement for sale purported to have been executed by the defendant nos. 1 to 3 in favour of the plaintiff is dated 27.1.86 and has been admitted in evidence and marked as Ext. 2 and that is subsequent to the execution of the registered deed of general power of attorney by those very defendant nos. 1 to 3 in favour of the plaintiff on 15.01.86, which has been admitted in evidence and marked as Ext. 1. Although it has been pleaded by the plaintiff at paragraph-18 of the plaint that on 19.5.87, another agreement has been entered into between him and the defendant nos. 1 to 3, the same has not been proved and simply a photo copy of the same is there on the record. But that document having been filed by the plaintiff that too with necessary pleading on that score in the plaint, he is wholly bound by it and the court is thus free to go through the same so as to derive necessary implication thereof. In the so-called first agreement for sale i.e. Ext. 2, the general power of attorney dated 15.1.86 Ext, 1 has been very much referred to. It rather finds mention in the recital of the said agreement for sale i.e. Ext. 2 that the plaintiff has been duly discharging the duty as the attorney of defendant nos. 1 to 3, pursuant to the conferment of he power under the deed to that effect which has been proved and marked Ext. 1. It has been stated that as it is not possible on the part of the plaintiff to arrange the buyers for the land of defendant nos. 1 to 3 within short period of time, which is becoming a time consuming affair, in view of the emergent standing situation with urgent need of money, the defendant nos. 1 to 3 having requested the plaintiff to advance Rs. 12,000/- from out of the total agreed consideration which would come to be received in future from the buyers as would be arranged by the plaintiff, the same has been paid and the total consideration amount for the land as agreed between them was then fixed at Rs. 1,65,000/-, This clearly goes to show that the plaintiff was authorized to arrange purchasers on such consideration for sale of the land as he would fix but the defendant nos. 1,65,000/-, This clearly goes to show that the plaintiff was authorized to arrange purchasers on such consideration for sale of the land as he would fix but the defendant nos. 1 to 3 in, any event would take Rs. 1,65,000/- as total consideration and in pursuance of said arrangement, they received Rs. 12,000/- as advance. It has been further recited that pursuant to the general power of attorney it was stipulated that as and when, the plaintiff would be asking defendant nos. 1 to 3 to execute the registered sale deeds in favour of the purchaser/purchasers, the defendant nos. 1 to 3 would do the same: on receiving balance consideration. The general power of attorney Ext. 1 recites about the conferment of power to the plaintiff as their agent so as to facilitate the sale of the land in question by them and to arrange prospective buyers so that the defendant nos. 1 to 3 would be able to sell the same by executing necessary deeds in their favour transferring title and possession in respect of the land as would be sold. The subsequent agreement dated 19.5.87 as has been pleaded in para-18 of the plaint is after the sale of some portion of the property, when at that point of time there remained balance unsold area of Ac. 2.842 decimals of land, which the defendant nos. 1 to 3 also intended to sell. That agreement is said to have been entered into between the parties for the purpose of facilitating sale of that rest land of Ac. 2.842 as per arrangement to be made by the plaintiff in favour of such prospective buyers by 31st day of October, 1987, for a sum of Rs. 1,18,000/-. A condition is seen to have been put thereunder as a burden upon the plaintiff to complete the entire exercise facilitating the sale which is evident from the recital that in case the same is not made possible by the plaintiff and on his failure to do so by that agreed period, the defendant nos. 1 to 3 would be constrained to cancel the deed of power of attorney standing in favour of the plaintiff, to which the plaintiff cannot raise any objection and would thus stand precluded from acting as their agent any more. All these being cumulatively viewed transpires that the plaintiff despite said so-called agreement for sale vide Ext. 1 to 3 would be constrained to cancel the deed of power of attorney standing in favour of the plaintiff, to which the plaintiff cannot raise any objection and would thus stand precluded from acting as their agent any more. All these being cumulatively viewed transpires that the plaintiff despite said so-called agreement for sale vide Ext. 2 still was continuing his status as the agent of the defendant nos. 1 to 3. 12. The trial court while going to record its decision on issue nos. 6, 7 and 8 being taken together: as interlinked appear to have not at all. giving a harmonious reading to the purported agreement for sale Ext. 2 and the deed of power of attorney Ext. 1 as well as the subsequent agreement as has been pleaded in para-18 of the plaint keeping in view that in both the so-called agreements, there has always been specific reference to the very power of attorney, Ext. 1 executed by the defendant nos. 1 to 3, in favour of the plaintiff to act as their agent for the purpose as indicated therein and has not at all studied all such factual as also legal implication which is my considered opinion is manifestly erroneous. 13. The principal prayer in the plaint which has been allowed is to pass a decree for specific performance of contract which obviously hints at that agreement dated 27.1.86 Ext. 2 to direct the defendant nos. 1 to 3 to sell the schedule 'C' property which is a part of the property covered under Ext. 1, for which the defendant nos. 1 to 3 had given the power of attorney in favour of the plaintiff appointing him as their agent to sell said properties and that schedule 'C' property has remained as residue after few transactions for sale of land to different persons as arranged by the plaintiff to which the plaintiff raises no objection. 14. Admittedly, as the position stands entire schedule 'A' property by the time of the suit has already been sold. There is no denial of the fact that the defendant nos. 1 to 3 have sold the properties to four persons in between the period from 21.7.86 to 19.5.87, more particularly to one such purchaser on 21.7.86 and three others on one day i.e. on 19.5.87. There is no denial of the fact that the defendant nos. 1 to 3 have sold the properties to four persons in between the period from 21.7.86 to 19.5.87, more particularly to one such purchaser on 21.7.86 and three others on one day i.e. on 19.5.87. It is also not disputed by the plaintiff that all these sales have been made to the persons as arranged by him and that too for the consideration that he fixed on behalf of the defendant nos. 1 to 3 with those purchasers and that the plaintiff did everything in fructifying those sales including putting the purchasers in enjoyment of their purchased properties. So definitely, its not on the strength of any independent right of his own and certainly as the agent of the defendant nos. 1 to 3 and on their behalf. With all these sales the dispute at present is with regard, to residue property of these defendant nos. 1 to 3 under that very mouza and khata. So the reason for the plaintiff to be aggrieved in the matter is crystal clear as because the defendant nos. 1 to 3 have sold those properties in favour of the defendant nos. 4 to 24 by almost exhausting the whole. The grievance of the plaintiff is that the said sales ought to have been routed through him and in view of the agreement, be it under Ext. 2 or the next one, being no exhibited, copy of which is on record so as to put a final cap on the to all consideration as agreed to be received by the defendant nos. 1 to 3. 15. The plaintiff however, claims that the defendant nos. 1 to 3 had no right to sale the property to defendant nos. 4 to 24 and therefore, those defendants as such purchasers have derived no right, title and interest over their respective purchased properties by virtue of those registered sale deeds executed by the defendant nos. 1 to 3 in their favour and they are estopped to say that they had no knowledge of such agreement for sale, further for having not at all made any bona fide enquiry prior to the transaction for which they cannot get any protection under the law. 16. If we glance at the agreement for sale Ext. 1 to 3 in their favour and they are estopped to say that they had no knowledge of such agreement for sale, further for having not at all made any bona fide enquiry prior to the transaction for which they cannot get any protection under the law. 16. If we glance at the agreement for sale Ext. 2 keeping in view the case of the plaintiff, it is not a case of total failure on the part of the defendants nos. 1 to 3 but it is a case of non-performance by them in respect of a part of the subject matter that is the property in question remaining as the residue after the sales made in favour of those four persons as agreed upon. It is very interesting to note that in the so-called agreement for sale, which has been admitted in evidence being proved from the side of the plaintiff (Ext. 2) and the other one though pleaded and copy filed has not been proved by the plaintiff nonetheless is fully binding on him, clear cut recitals are there as regards the authority given to the plaintiff to do everything so as to facilitate the sales of the chunk of land owned by the defendant nos. 1 to. 3. The recitals are also to the effect that the plaintiff was earlier helping the defendant nos. 1 to 3 in all such affairs relating to the said properties. It contains the admission of the defendant nos. 1 to 3 that they have received a sum of Rs. 12,000/- from the plaintiff. Put the catch remains there with the further clarifications given thereto that the said amount has been received as advance consideration which would be so fetched in case of sale of the property as would be facilitated by the plaintiff. The words find emphatically mentioned are:-' UKTA BRUTIRA JARSAMANA TANKARU' (from out of the considerations towards the sales). So by no stretch of imagination, it can be said to have been paid by the plaintiff as advance consideration for the purchase of land by him under the agreement and the factor of financial In capacity of the plaintiff although in making the payment of agreed consideration clearly gets inferred. If we read the condition no. (1) it states that the parties have aggrieved that the maximum consideration amount for the sale of the land would be Rs. If we read the condition no. (1) it states that the parties have aggrieved that the maximum consideration amount for the sale of the land would be Rs. 1,65,000/- and the defendant nos. 1 to 3 would not claim anything over and above the same. Condition no. (2) reiterates about the receipt of Rs. 12,000/- by the defendant nos. 1 to 3 from the plaintiff. Condition no. (3) is to the effect that if the plaintiff wants that the defendant nos. 1 to 3 would execute sale deeds of the land even before he receipt of the balance consideration, the defendant nos. 1 to 3 would do so and even the purchasers in that event would be allowed to take away the original sale deeds.. However, condition no. (4) again states that on payment of balance consideration, the defendant nos. 1 to 3, if so asked would either execute the sale deeds in favour of those purchasers or in favour of the plaintiff as the plaintiff would desire and demand. These clauses, in my considered view, appear to have been put at the end to ensure that under no circumstance, the property slips away from the control of the plaintiff for being sold directly by the defendant no 1 to 3 to others without being moored and routed through the plaintiff. The money receipts proved in the case as Exts. 3 and 4 whereas the counterfoil towards the payment of amount-by cheque have been proved as Exts. 5 to 7, those are dated 21.7.86, 19.5.87, 4.8.87, 8.4.88 and 20.4.88. One relates to the period before the second agreement not proved but copy filed by the plaintiff and had been pleaded which is wholly binding upon the plaintiff and rest all exhibits 4 to 7 are after that second agreement 'Y'. If the first agreement for sale was still In force, there comes no explanation from the side of the plaintiff as to why the second agreement had been made. At this stage, if we just have to give a plain reading to the same which the court can since the document has been filed by the plaintiff being pleaded and referred to in the plaint; it is seen that again it has a definite reference to that very general power of attorney, Ext 1. At this stage, if we just have to give a plain reading to the same which the court can since the document has been filed by the plaintiff being pleaded and referred to in the plaint; it is seen that again it has a definite reference to that very general power of attorney, Ext 1. The purpose appears thus to be as clear as noon day that the agreement by the defendant no 1 to 3 was to put a check upon the plaintiff in so far as the running of time is concerned in arranging the purchasers for sale of the land in question. The reason is obvious and hits at the ordinary common sense and experience in the prevalent days of real estate scenario that if in such matters, the delay on the part of the agent is highly detrimental to the interest of the principal and to the great advantage of the agent when they have fixed the maximum consideration amount for the entire land. That is the reason, the recital is there to the effect that for sale of residue land, the plaintiff would do the needful in arranging the purchasers scrupulously within a period of six months indicating a clear date that it be by 31st October, 1987 or else the appointment of the plaintiff as their agent would be revoked and the defendant nos. 1 to 3 would go for cancellation of the deed of power of attorney, Ext 1 in accordance with law, just keeping the prior actions unannulled. The defendant nos. 1 to 3 have in fact cancelled the deed of power of attorney and thereafter sold the residue property to the defendant nos. 4 to 24. 17. For the above discussion arid reasons, I am of firm view that even accepting the execution of the agreement, Ext. 2 to have been made by the defendant nos. 1 to 3, it cannot be held to be an agreement for sale standing in favour of the plaintiff so as to be acted upon as it is and it is merely an agreement to safeguard the interest of the plaintiff so as to ensure his financial entitlements as the agent of the defendant nos. 1 to 3 in lieu of his service as such. The plaintiff thus in my considered opinion cannot press that agreement Ext. 1 to 3 in lieu of his service as such. The plaintiff thus in my considered opinion cannot press that agreement Ext. 2 into service for the residue property under schedule 'C' of the plaint by compelling the defendant nos. 1 to 3 to sell the residue property to him. The suit for specific performance of contract as laid by the plaintiff thus has to fail. Accordingly, the judgment and decree passed by the trial court are liable to be set aside. 18. In the result, the appeal is allowed. The judgment and decree impugned in this appeal are set aside. The plaintiff's suit is dismissed. The parties are directed to bear their respective cost of litigation all throughout.