Decided on November 05,1971



- (1.)Defendants 2 and 5 in O.S.No. 33 of 1968 on the file of the Court of the District judge, West Godavari at Eluru are the appellants. The suit was filed by Sardar Pratap Singh, the 1st respondent herein, agains- the seven defendants for specific performance of an agreement of sale (Exhibit A-l) dt. 9-2-1968 executed by the is defendant for himself and on behalf of his minor son, the 4th defendant and by the 2nd defendant and his minor son the 5th defendant represented by him in favour of the plaintiff, agreeing to convey the suit property, 529 square yards of the Rs. !4/-per square yard. An advance of Rs. 2000/-was paid on the date of execution of the agreement. Another sum of Rs. IOOO/-was paid on 4-3-1968. The plaintiff was ready to pay the balance and take a sale deed from the defendants provided they obtained the consent of the 3rd defendant. On 15-4-1968, the plaintiff deposited the balance of Rs. 4406/-in the Bank and Issued notice to the defendants on 16-4-68 calling upon them to execute a sale deed in accordance with the suit agreement. Defendants I and 2 sent a joint reply on 25-4-1968 stating that the extent of site mentioned i" the suit agreement was only tentative and that after actual measurement,the extent within the boundaries disclosed in the agreement was only 446 square yards and that they were prepared to execute a sale deed only for that extent. Defendants 3 and 4, also sent a repfy with similar allegations Defendants 6 and 7, who were subsequent purchasers, also sent a reply stating that they had purchased the land without notice of the prior agreement in favour of the plaintiff. The plaintiff therefore filed the suit for specific performance of the agreement. All the defendants contested the suit.
(2.)The learned District Judge framed the following nine issues:
1. Whether the suit agreement dated 9-2- 1968 is true, valid and binding on defendants 1,3 and 4 ? 2. Whether the plaintiff is entitled to specific performance against any of the defendants ? 3. Whether the 4th defendant was a minor on the date of the suit agreement ? 4. Who committed breach of the suit agreement ? 5. Whether the plaint sketch is correct ? 6. Whether the plaintiff is entitled to the alternative relief of refund cf the advance and recovery of damages? 7. Whether the suit agreement is a completed document; If not, whether the same is enforceable even against the parties that actually executed it ? 8. Whether defendants 6 and 7 are purchasers of the red and blue marked portions in the plaint plan with notice of the agreement of sale in favour of the plaintiff executed by defendants I to 5 ? 9. To what relief ?

(3.)The learned District }udge held that the suit agreement was true and valid and binding on defendants 1,3 and 4 and that the 4th deferant was a minor on the dace of the suit agreement, that the plaint sketch was correct and that the suit agreement was a completed document He however, held that defendants 6 and 7 were bonafide purchasers of the suit property without notice of the agreement of sale in favour of the plaintiff, and therefore he was not entitled to specific performance of the suit agreement against thedefendants and that he was only entitled to claim the alternative relief of refund of advance money and damages. Accordingly, the learned Judge decreed the suit of the plaintiff with costs against defendants I to 5 for the alternative relief of Rs. 3000/- towards the amount paid as advance and for liquidated damages of Rs. 40QO/. The suit was dismissed as against defendants 6 and 7, but without costs. Hence the appeal.

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