GYANESHWAR Vs. MOONGABAI ALIAS MUNESHWARIBAI

JUDGEMENT

(1.) The present appeal arises out of dismissal of suit for specific performance by the Court of First Additional District Judge to the Court of District Judge, Balaghat, vide judgment and decree dated 26.4.1989, passed in Civil Suit No. 24-A/88.

(2.) The plaintiff on 22.6.1985 instituted a suit for specific performance in respect of an immovable property in the nature of house and plot situated in the district of Balaghat. The property belonged to Kunwarlal, which was inherited by the defendants Moongabai and Parwatibai, both being his widows. Both widows entered into an agreement for sale of suit property to the appellant/plaintiff, for a consideration of Rs. 65,000.00. Out of this amount, Rs. 10,000.00 were received by defendants No. 1 and 2 and the balance amount was liable to be paid at the time of execution of the registered sale deed. It is further stated in the plaint that the plaintiff had been residing in the suit property during the lifetime of Kunwarlal. Possession of suit property with the plaintiff was acknowledged by the defendants No. 1 and 2, in the capacity of prospective purchaser. Since, one of the room, comprised in the suit property was occupied by one Harish Kumar Nagpure, the same continued in the occupation of the said Harish Kumar Nagpure with the consent of the plaintiff and defendants No. 1 and 2. The plaintiff in the month of September, 1984 asked the defendant No. 1 to receive the balance amount and execute the registered sale deed in his favour, in respect of the suit property. Since they were close relatives, the plaintiff trusted the defendant No. 1 that she would execute the registered sale deed in future. However, it is contended that the plaintiff was ready and willing to pay the balance amount of consideration and get the sale deed executed in his favour. On 9.5.1985, the plaintiff came to know that the defendant No. 1 was going to sell the suit property in favour of one Jaiswal. The plaintiff submitted an application before the Sub-Registrar, Balaghat with a prayer that the defendant No. 1 may not be permitted to alienate the property in favour of a third person, on account of earlier sale agreement in favour of the plaintiff. However, the plaintiff later on came to know that defendant No. 1 has sold the suit property to the younger brother of Chhedilal Jaiswal, vide registered sale deeds dated 9.5.1985 and 10.5.1985. The plaintiff contended that Ghanshyam jaiswal, who was impleaded as defendant No. 3, was aware of the earlier agreement dated 28.6.1984 and was not a bona fide purchaser. Accordingly, the plaintiff has prayed for decree for specific performance against defendant No. 1. The plaintiff has further prayed for declaration that the sale deeds executed by defendant No. 1 are not binding on him. In the alternative, plaintiff has prayed for refund of consideration amount paid as advance, with interest.

(3.) Defendants No. 1 and 3 submitted their separate written statements and denied the claim of the plaintiff. The defendant No. 1 has stated that Kunwarlal was maternal uncle of the plaintiff and had no issue from both the aforesaid wives. She denied the factum of alleged agreement of sale for consideration of Rs. 65,000.00 and has further denied the receipt of Rs. 10,000.00 as part of consideration. She further contended that the plaintiff was liable to pay the balance amount of consideration of Rs. 55,000.00 by first week of October, 1984 and was liable to get the sale deed executed positively by this time, because the time was essence of the contract. She stated that the plaintiff was not possessed of the balance money and was not ready and willing to purchase the suit property. So, the alleged sale agreement stood cancelled automatically on account of failure on the part of the plaintiff to comply with the sale agreement. The suit property has been validly sold to defendant No. 3 by registered sale deeds. She further stated that the plaintiff was trying to grab the suit property because the defendants No 1 and 2 had no issue. Earlier, he had claimed suit property on the ground of gift and had also claimed the ownership over it.