ADELIA DOS REMEDIOS Vs. ANAND GIRI KENI

JUDGEMENT

(1.) THE first appeal is directed against the judgment and decree passed by the Civil Judge, Sr. Division, Panaji on 23-7-1997. By the said decree, the trial Court decreed the plaintiffs suit partly and directed the defendants Nos. 1 to 16 to sell the suit plot No. 43 to the plaintiff as agreed upon by them within 90 days from the date of decree.

(2.) THE original defendants No. 1, 4, 11, 12, 13, 14, 15 and 16 are in appeal aggrieved by the said judgment and decree.

(3.) ANAND Guiri Keni (since deceased) and now represented by his legal representatives (respondents No. 1 to 6 hereinafter, referred to as "the plaintiff)filed the suit for specific performance of the agreement, though styled as the suit for declaration, mandatory and permanent injunction and damages. He set up the case in the plaint that by an agreement dated 12-7-1971, the late Luciano Jovita francisco Pinto and his wife agreed to sell their property to Sharada Mandir trust known as "nagally" and "queundem" situated at Teleigao, IIhas, Goa bearing Land Registration No. 1436 at Book B 4 old and Revenue Nos. 216, 217, 219, 223, 224, 225, 630 and 642 directly or through its nominee or nominees. That in terms of the said agreement, Sharada Mandir Trust appointed him to carry out sub-divisions and development of the said property and to arrange for sale of the sub-divided plots. On 9-9-1971, the said Luciano Jovita Francisco pinto and his wife executed another agreement with the said Trust and the plaintiff, specifying the terms and conditions relating to the sub-division and sale of the plots. The said property was sub-divided into plots subsequently and their approval from the Town Planning Department was secured and the sale of the resulting plots was partially effected. When the sale was in process and the plots were yet to be completely sold as per the agreement, the dispute arose between the plaintiff, Sharada Mandir Trust and Luciano Pinto and his wife. That led to the Sharada Mandir Trust in filing the suit bearing No. 37/81/a in the Court of the Civil Judge, Sr. Division, Panaji. The said suit was settled between the parties by the consent decree dated 7-9-1981. The plaintiff averred that pursuant to the consent decree, the said Luciano Pinto and his wife executed various sale deeds of the plots. When the plaintiff wanted the said Luciano and his wife to execute the sale of five plots including Plot No. 43, by his letters dated 3-3-1982 and 19-8-1982 he refused to execute the sale of the five plots. The plaintiff then wrote a letter dated 31-8-1982 to Luciano Pinto explaining to him that the said five plots including Plot No. 43 formed part of the consent decree and that the said plots had been approved by the Town Planning Department. In response to his letter dated 31-8-1982, Luciano Pinto recorded that he would verify from the plan whether the said plots existed in fact or not and in case he was satisfied, he would sign the sale deed within the time mentioned in the letter dated 31-8-1982. Luciano Pinto and his wife after scrutinizing the plan signed the sale deed pertaining to the four plots, but did not sign the sale deed relating to Plot No. 43 on the ground that plot No. 43 was not included in the consent decree. In the plaint, the plaintiff averred that in the consent terms dated 7-9-1981, by mistake, two plots were mentioned as plot No. 48; one of the these plots is in fact Plot No. 43. The plaintiff further averred that in the consent decree it has been clearly mentioned that Luciano Pinto and his wife shall sell to Sharada Mandir Trust or to such person as may be named by it all the 89 plots approved by the Town planning Department as mentioned in the plan annexed to the application for consent decree. According to the plaintiff, Plot No. 43 was one of those 89 plots. Luciano Pinto expired on 25-3-1984 and, therefore, in the suit besides his wife who was impleaded as defendant No. 1, his other heirs were impleaded as defendants Nos. 2 to 10. The trustees of Sharada Mandir Trust were impleaded as defendants Nos. 17 to 21. The plaintiff claimed that the defendants Nos. 1 to 16 were bound to sell plot No. 43 to the plaintiff or to such person as may be named by him. According to the plaintiff, the said plot was agreed to be sold at the rate of Rs. 25/- per sq. metre, out of which Rs. 8. 50 was part of consideration to the defendants Nos. 1 to 16. Because of refusal by late Luciano Pinto and his wife in executing the sale deed in respect of plot No. 43, the plaintiff set up the case that he suffered loss of Rs. 10,000/ -. The plaintiff in the backdrop of the afore-narrated facts prayed for a decree of declaration that the defendants Nos. 1 to 16 are bound and liable to sell plot No. 43 to the plaintiff or to such other person or persons as the plaintiff may name in accordance with the consent decree for the price of Rs. 8. 50 per sq. metre and directions to the defendants Nos. 1 to 16 to sign, execute and register a deed of sale in respect of the said plot No. 43. The plaintiff also prayed for a direction to pay him a sum of Rs. 10,000/- on account of loss and damage and for permanent injunction restraining the defendants nos. 1 to 16 from transferring the suit plot to any other person.