Bagiriti vs Laxmibai

Khaliluzzaman Siddiqi, J.—This is a civil suit between two ladies, residents of the Ramkote, a thickly populated Mohalla of the city of Hyderabad. It appears that both these ladies have a house adjoining their houses. The Plaintiff bady claims this house on the ground that there was an agreement to sell it to her and a sum of Rs. 25/- was paid by her to Defendants 2 and 3 as advance money, there after the two Defendants sold this house to Defendant No. 1.

The defence is that the agreement is really a sale deed and not merely an agreement of sale and therefore needs registration. The second point is that this house was sold by Defendants 2 and 3 to another person before this agreement and therefore there was no right in them to transfer and the agreement is unenforceable. The third ground is that in any case Defendant No. 1 had bought this house after payment of full consideration and is therefore protected u/s 22, clause B of the Local Specific Relief Act. The Trial Court finding for the Defendant lady on all accounts dismissed the Plaintiffs suit. But simple money decree of Rs. 25/- the advance money was awarded only against Defendants 2 and 3. The first appellate court reversed the finding of the trial court and decreed the Plaintiff''s suit.

It must be remembered that the relief the Plaintiff lady has come forward for is in the nature of specific relief and is purely in its inception an equitable relief. In considering the facts of this case, I shall, therefore, be influenced to a certain extent by equitable considerations in this respect, see 30 Deccan LR 383. As to the first point raised by the Defendant lady that the agreement of sale is in fact the sale deed, I am of opinion that in view of the fact that this document has been drafted without any legal advice perhaps on the advise of some pyrocar or ordinary clerk much importance cannot be attached to the phraseology used. What I should see is the real purpose and intention of the parties and the anxiety to bind them (Vendors) with so much responsibility as possible might have induced the draftsman to employ such words as sold out in sale etc., (the document is in Telugu language). I therefore hold that it is a mere agreement of sale and not a sale deed.

As to the oilier point that the house was sold out to another man before this agreement, it is wry difficult to hold the sale proved where the parties to that document swear that it was not in fact sale deed and especially in view of the conduct of the parties which bears out the evidence given by the supposed vendee. Because, if he was really the purchaser of the house and if this registered sale deed in his favour was really effective there was no need for him to give up that house just to please the different parties litigating in this suit.

But I find for the Defendant in respect of issue No. 3. The Plaintiff lady came with an express allegation that the agreement of sale was within the knowledge of Defendant No. 1 at the time when he transacted the sale for herself. The evidence produced in this respect mainly consists of P. Ws. 1 and 3, P. W. 1 has not been credited by the trial court and some portions of his statement certainly create reasonable doubt as to his credit. The second witness towards the end of his statement does admit that the Panchayat was held on the same day when the document was registered.

now the lower courts have made much of the point that the burden of proof in respect (SIC) relating to Section 22B, Specific Relief Act (SIC) the Defendant the person who claims the (SIC)of the section. That legal proposition hardly be doubted but it must be remem (SIC) that burden of proof depends very much he admissions and the allegations which made in the pleadings and in the way the as are joined by the parties thereupon. (SIC) the related issue was framed it was so led as to clearly indicate that the burden on the Plaintiff; of course it is not con-(SIC)It happens this way, that Plaintiff came with a definite allegation in the (SIC) that house has been bought by the de cant lady with full knowledge and ac-(SIC) of this agreement with the Plaintiff and was therefore short of a bona fide section as it involved risk arising from knowledge. To that the Defendant put in (SIC) which led to the present issue being led in that way by the lower court in the once of the lawyers of both the parties, consider it highly doubtful whether it is open to the courts without amending the or without giving any opportunity to the concerned to adduce evidence to change ground at the time of the judgment and that the burden is not on the person on it was indicated to be in the course of trial but on the other side. However, both courts have looked on this matter in this that complete evidence has been product (SIC) both the parties and I see no reason to (SIC)from this fact because none of the par-before me (SIC) any list of further once that might have been adduced with appreciable advantage in the case. Decant lady came in the witness box and she sworn to the fact that it was not within knowledge at the time that there was a ract of sale in existence against her. I see case on to doubt her statement. The Plaintiff of course has not offered herself as a ess and the other side had no opportunity fucidate facts from her.

view of these facts, I think that all table considerations lead in one direction a bona fide purchaser for full value shall protected against a contract of sale provide full and adequate consideration has been by that purchaser. As to the payment of duration there is not the slightest doubt (SIC)h was in fact paid in cash before the Regan It has not even been challenged. In of Specific Relief Act - Section 22(B), I am unto exercise my discretion in awarding specific relief and deprive the bona fide chaser the value of her already acquired completed rights against a mere claimant, comes in under an unregistered deed to (SIC)rce the contract. The third persons pur sers must be protected if they have taken the reasonable care which can be expected an average man. It appears that both these es allege right of preemption to this house that is not a point under trial in this suit even on that score I do not find any (SIC)ty in favour of the Plaintiff lady. I, there-allow this appeal, reverse the judgment the First Appellate Court and uphold the Judgement and decree of the trial court. The (SIC)ndants will get costs throughout.