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Judgment
Sanjay K. Agrawal, J
The substantial question of law involved, formulated and to be answered in this second appeal preferred by the defendants is as under:-
Whether, the Courts below were justified in holding that document Ex.P-1 is an agreement to sale thereby giving enforceable claim to the plaintiff to
seek specific performance ?
[For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].
Two plaintiffs filed a suit for specific performance of contract stating inter-alia that defendant No.1-Banshilal @ Banshidhar has entered into
agreement to sale with them along with defendant No.4 to sale the suit land for cash consideration of ₹ 11,000/- and obtained ₹ 10,500/- and he
executed a document in the shape of agreement dated 11.2.1983 (Ex.P/1) and promised to execute the sale deed on lifting of ban as that time ban on
registration of sale deed was operative, but he did not execute sale deed in favour of the plaintiffs & defendant No.4 and sold the suit land in favour of
defendants No.2 and 3 on 22.2.1988 leading to filing of suit for specific performance of contract.
The defendants filed their written statement denying the plaint allegations stating inter-alia that defendant No.1 has rightly sold the suit land in
favour of defendants No.2 and 3 as the plaintiffs themselves have revoked agreement to sale. The trial Court after appreciating oral and documentary
evidence available on record, by its judgment and decree dated 20.2.2000, decreed the suit holding that agreement to sale was executed by defendant
No.1 in favour of the plaintiffs on 11.2.1983 for cash consideration of ₹ 11,000/- and obtained ₹ 10,500/-, but thereafter sold the land in favour of
defendants No.2 and 3 on 22.2.1988, as such, they are entitled for decree for specific performance of contract, which was assailed by the defendants
by way of first appeal. The First Appellate Court while affirming the judgment and decree of the trial Court dismissed the appeal, against which, this
second appeal under Section 100 of the CPC has been preferred by the defendant, in which substantial question of law has been framed and set-out in
the opening paragraph of this judgment.
Mr.Vivek Tripathi, learned counsel for the appellants/defendants, would submit that Ex.P/1 is not agreement to sale and therefore, it does not give
enforceable claim to the plaintiffs to seek specific performance of contract, as such, the judgment and decree passed by both the Courts below is
contrary to record and deserves to be set aside.
Mr.B.D.Guru, learned counsel for respondent No.1/plaintiff, would support the impugned judgment and decree and submit that both the Courts
below are justified in holding so, as such, the second appeal deserves to be dismissed.
I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost
circumspection.
The sole question for consideration would be whether the document dated 11.2.1983 (Ex.P/1) is an agreement to sale ?
Four ingredients necessary to make an agreement to sale are:
(i) particulars of consideration,
(ii) certainty as to party
(iii) the vender and vendee
(iv) certainty as to other terms relating to probate, cost of conveyance to be borne by parties, time etc.
In order to appreciate the dispute, it would be appropriate to notice Ex.P/1, which states as under:-
-
000 12 00 00
0
0
0
0 , 0 10,500/-
,
.. -11/02/1983
( )
1-
2-
3-
4-
0 0
The question is whether the above-stated document is an agreement to sale (Ex.P/1) and is enforceable and it gives enforceable claim to the
plaintiff to seek specific performance. A careful perusal, it appears that Ex.P/1 acknowledges the payment of part of consideration of ₹ 10,500/- and
defendant-Banshilal admits agreement to sell the suit property in favour of the plaintiffs and defendant No.4-Vijelal and in token amount of that, he
executed deed (Ex.P/1) in favour of the plaintiffs. It gives description of the property and it is signed by defendant No.1 in presence of four witnesses.
Defendant No.1 has also been examined as DW-3. He has clearly admitted in para-1 of his statement that in the year 1983 he had entered into an
agreement to sale with the plaintiffs & defendant No.4 and further stated that he agreed for ₹11,000/- to sale the suit land and he has obtained ₹
10,500/- from plaintiff No.1-Pukhram and also admitted the fact of subsequent sale to defendants No.2 and 3 in the year 1988.
In view of aforesaid statement, it is quite obvious that Ex.P/1 is only and only outright agreement to sale the suit land in favour of the plaintiffs &
defendant No.4 and that gives enforceable claim to the plaintiffs to seek specific performance. No serious dispute has been raised by defendant No.1
with regard to nature of document that it is not agreement to sale either in written statement or before the two Courts below. Even otherwise, the
defendants cannot be permitted to raise new plea before this Court in utter surprise to the plaintiffs, as such, the concurrent finding recorded by two
Courts below is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. I do not find any illegality or
perversity in the said finding. The substantial question of law is answered in favour of the plaintiffs and against the defendants.
Accordingly, the second appeal being devoid of merit is liable to be and is hereby dismissed leaving the parties to bear their own cost(s).
A decree be drawn up accordingly.
Sd/-
(Sanja