MOHANLAL Vs. MISHRIMAL

JUDGEMENT

(1.) This appeal by the plaintiff roises an interesting question about the application of the doctrine of Lis pendens to a sale after the institution of a suit for specific performance by another person in pursuance of an earlies agreement to sell made in his favour & arises from the follwing facts.

(2.) A plot of land situated in village Rani belonged to Tarachand who is alleged to have entered in to an agreement to sell the said plot on his own behalf & of his 2 minor sons with plaintiff Mohanlal on 16-4-49 for Rs.l500/-out of which Rs. 1000/- were then paid. This agreement to sell was dewed on 4 December' 1951, because the document of sale could not be exec ted in pursuance of the previous agreement. Subsequently Tarachand is say I to have agreed to sell the same plot to Mishrimal respondent on 12-10-1919. Tarachand did non execute any sale-deed in favour of Mishrimal also and so it latter instituted a suit for specific performance of the agreement against Mahanlal on the basis of the agreement dated 12.10.49. The suit for specific performance was instituted on 3-10-53. During the pendency of this suit to which Mohanlal was not made a party. Trachand executed a sale-deed in favour of Mohanlal on its October, 1954, and got it registered. Mishnlal's suit for specific performance was decreed against. Tarachand and in execution of the decree he was resisted in delivery of possession by Mohanlal. Thereupon Mishrimal made an application under Order 21 Rule. 97 CP C. to the executing court for the removal of the obstruction. Notice was given to Mohanlal and he submitted his reply that he was the true owner of the disputed plot on the basis of the sale-deed executed by. Tarachand in his favour. The executing court found that Mohanlal was a representative of the judgment-debtor because he had purchased the property during the pendency of the suit for specific performance and as such dismissed the objection and possession was delivered to Mishrilal. Mohanlal again made an application for restoring possession of the property to him on the ground that he had purchased the property in pursuance of prior agreement and that the decree-holder was not entitled to take possession of the house which he had built on the plot after the sale in his favour. This objection was also dismissed by the executing court Mohanlal then instituted the present suit for recovery of possession of the house and plot and in the alternative for Rs. 11500/- for the cost of the building and Rs. 1500/- for the price of the plot. Tarachand was also impleaded as a party to the suit and a prayer for recovery of the amount paid to him and the cost of the building was also made against him.

(3.) Separate written statements were filed on behalf of defendant No. 1, the vendee and defendant Nos. 4, 5 and 6, the vendor and his two sons Defendants Nos. 4, 5 and 6 in their written statement admitted the exeexcution of the agreements to sell of the disputed plot of land in favour of the plaintiff on 16-4-49 and 4-12-51, They denied the execution of such agreement in favour of defendant No. 1 However, they admitted that defendant No. I had obtained a decree for specific performance against them on 23.12.55.