PRAKASH CHANDRA Vs. ANGADLAL

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and decree of the High Court of Bombay in a suit for specific performance of a contract.

(2.) The appellant brought Civil Suit No. 217-A of 1958 in the Court of the Civil Judge, Amravati alleging that one Mohsinali and Qurban Hussain had entered into an agreement for sale in his favour on September 11, 1956 for the sale of a plot measuring 100 feet by 10 feet for a sum of Rs, 4,000. It was asserted that he had paid Rs. 1,000 as earnest money and the balance was to be paid on registration of the sale deed. Of that balance, a further Rs. 2,000 was paid later. Subsequently, it is pleaded, Mohsinali informed the appellant of the pendency of Civil Suit No. 13-A of 1956 between himself and certain others including Umarsha and Girjashankar, for declaration of title and for possession, upon which the appellant then executed a further document dated November 18, 1957 by which he agreed that in case the said Civil Suit No. 13-A of 1956 resulted in a settlement confirming Mohsinali's ownership and allowing him possession of the site he would pay Mohsinali the balance of Rs. 1,000 as agreed earlier and would obtain a sale deed from him according to the earlier agreement for sale, but in case the settlement did not so result he would be entitled to a refund of Rs. 3,000 paid by him. It appears that a compromise was entered into between Mohsinali and Qurban Hussain on the one side and Umarsha on the other in Civil Suit No. 13-A of 1956 under which it was agreed that if Umarsha paid Rs. 15,000 to the former within 15 days he would be entitled to the site and would continue in possession as before, but in default of such payment he would cease to have any right or interest in the site and the former would be entitled to a declaratory decree of ownership and for delivery of possession. Umarsha defaulted, and therefore in terms of the compromise the Civil Suit No. 13-A of 1956 was decreed in the second week of December, 1957 in favour of Mohsinali and Qurban Hissain for title and possession. Meanwhile, however, after the default by Umarsha but before the said decree could be passed, Mohsinali and Qurban Hissain executed a sale deed dated December 6, 1957 in favour of Angadlal and Vijay Kishore, the successors-in-interest of Girjashankar, and impleaded in this appeal as the first and second respondents, transferring the site to them for Rupees 15,000. Girjashankar had been in possession of the land under Umarsha, and was followed by these respondents. It was recited by Mohsinali and Qurban Hussain in the sale deed that on the basis of the compromise in Civil Suit No. 13-A of 1956 their 'ownership and possession had been established', and that now by virtue of the sale the ownership and possession belonged to the venders. The appellant then filed the present suit for specific performance on refusal by Mohsinali and Qurban Hussain to execute a sale deed in his favour.

(3.) The suit was contested by Mohsinali, and he pleaded that by the document dated November 18, 1957 the appellant had waived his rights under the agreement for sale dated September 11, 1956 and had opted for refund of Rupees 3,000 paid by him. The suit was also resisted by the first and second respondents who rested their claim on the sale deed dated December 6, 1957 in their favour.