Alok Sharma, J. - (1.) THIS civil first appeal under Section 96 of CPC impugns the judgment and decree dated 20.11.1989, passed by the Additional District and Sessions Judge No. 4, Jaipur City, Jaipur accepting the suit of the plaintiffs (now the respondents before this Court) for specific performance of a contract with reference to an agreement to sell dated 05.12.1978 for sale of a shop situate outside Chandpole Gate, Sansar Chandra Road, Jaipur for a sum of Rs. 37,500/ -. I have heard Mr. J.P. Goyal, Sr. Advocate with Ms. Manisha Surana, on behalf of the defendants -appellants (hereinafter 'the defendants') and Mr. Sagar Mal Mehta, Sr. Advocate with Mr. Harsh Sharma, on behalf of the plaintiffs -respondents (hereinafter 'the plaintiffs').
(2.) THE facts of the case are that relying upon an agreement to sell dated 05.12.1978, in respect of shop No. 26 situate outside Chandpole Gate, Sansar Chandra Road, Jaipur, the plaintiffs filed a suit for specific performance on 11.02.1981 before the District and Sessions Judge, Jaipur City, Jaipur. The said suit was subsequently transferred to the Court of the Additional District and Sessions Judge No. 4, Jaipur City, Jaipur for adjudication. The plaintiffs' case in the suit was that shop No. 26 situate outside Chandpole Gate, Sansar Chandra Road, Jaipur was in the ownership of the defendants Chhitarmal and Manmauj (since deceased and now represented by their legal representative). It was submitted that for the sale of the aforesaid shop, a sum of Rs. 35,000/ - in cash was paid to the plaintiffs at the time of the execution of the agreement to sell dated 05.12.1978 and the remainder amount of Rs. 2,500/ - was to be paid as agreed, by the plaintiffs to the defendants at the time of the registry of the duly executed sale -deed. As per the agreement dated 05.12.1978, NOC from the competent authority was to be obtained by the defendants and the plaintiffs were to be informed whereupon they were to pay the remainder amount of Rs. 2,500/ - and have the sale -deed duly registered within a period of one month of the information of the NOC having been received. The case of the plaintiffs was that subsequent to the agreement to sell dated 05.12.1978, the defendants informed the plaintiffs vide letter dated 27.01.1980 of having obtained the requisite NOC. Thereupon the plaintiffs immediately purchased the requisite stamp papers for an amount of Rs. 3,420/ - on 29.01.1980 and prepared a sale -deed for the purpose of the registration of the sale, of the shop in issue, in their favour. It was submitted that the defendants however did not adhere to their obligation under the agreement to sell dated 05.12.1978 and in spite of the receipt of Rs. 35,000/ - under the agreement aforesaid did not accept the remainder Rs. 2,500/ - under the agreement to sell or execute the sale -deed and have it registered. In these circumstances, the plaintiffs issued notice to the defendants demanding execution of sale -deed of shop No. 26, but to no avail. Repeated request and notice thereafter also failed to make the defendants adhere to their obligation under the agreement dated 05.12.1978. Hence this suit for specific performance. On notice, written statements of denial were filed by the defendants. The execution of the agreement to sell dated 05.12.1978 was denied as was the receipt of Rs. 35,000/ - by the defendants. It was instead stated that the agreement to sell dated 05.12.1978 was a forged document. On the basis of the pleadings, the trial court framed four issues. The plaintiffs aside of their three witnesses, relied upon Ex -P/1 agreement to sell dated 05.12.1978, Ex -P/2 sale -deed which was got scripted on stamp papers by the plaintiffs, Ex -P/3 map of the disputed shop and Ex -P/4 original of the previous sale -deed by which the defendants had come into the ownership of shop in issue. The defendants in turn only examined DW -1 Chhitar Mal in respect of their case that the suit for specific performance was without force, based on forged agreement to sell dated 05.12.1978 and no consideration as alleged had been received by them.
(3.) THE trial court on consideration of the evidence before it held that the agreement to sell dated 05.12.1978 was fully proved by the statement of Anant Ram (PW -3) and also of the plaintiff Radhey Shyam (PW -1). It held that Bhuramal (PW -2) did not appear in the right state of mind and even though he did not support the case of the plaintiff, it was of little consequence in evaluating the veracity and authenticity of the plaintiffs' case as adequate evidence of the agreement to sell otherwise obtained on the record. On the issue of readiness and willingness of the plaintiffs to act in accordance with the agreement to sell dated 05.12.1978, the learned trial court noted that no sooner information with regard to the receipt of NOC by the defendants was conveyed to the plaintiffs on 27.01.1980, the plaintiffs had purchased the stamp papers for a sum of Rs. 3420/ - on 29.01.1980 and had even prepared the sale -deed on the said stamp papers. The trial court also noted the fact that the plaintiffs were in possession and had filed and proved Ex -P/4 which was the original sale -deed by which the defendants had come into possession of the shop in issue. Based thereon, the trial court concluded that the case set up by the plaintiffs with regard to the execution of the agreement to sell dated 05.12.1978 was fully proved as was the passing of part consideration of Rs. 35,000/ - out of the consideration of Rs. 37,500/ - agreed between the parties for the sale of shop No. 26 situate at Sansar Chandra Road, Jaipur. The trial court negatived the defence of the defendants with regard to lack of competence in the defendants to enter into the agreement to sell dated 05.12.1978 purportedly on the ground of the shop in issue being ancestral property in respect of which there were other persons with proprietary right aside of the defendants. The reasoning of the trial court was based on the judgment of this Court in the case of Deenanath Vs. Chunnilal reported in : 1974 RLW 383 wherein this Court had held that the executor of a document could not deny the execution thereof on the specious ground of his not being authorised to execute the document as such a plea was hit by estoppel.;