Rajasthan High Court - Jaipur
Krishan Kant And Anr vs Dilip Kumar And Others on 23 November, 2013
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B. CIVIL FIRST APPEAL NO.112/2000 (Krishan Kant & Ors. Vs. Dilip Kumar & Ors.) Date of Order : November 23, 2013 HON'BLE MR. JUSTICE ALOK SHARMA REPORTABLE Mr. R.K. Mathur, Sr. Advocate with Mr. Aditya Mathur, for the appellants-plaintiffs. Mr. R.K. Agarwal, Sr. Advocate with Mr. Ajay Gupta, for the respondents-defendants. BY THE COURT
This civil first appeal under Section 96 CPC has been filed against the judgment and decree dated 15.12.1999, passed by the Additional District Judge No.2, Sikar dismissing the plaintiffs-appellants' (hereinafter 'the plaintiffs') suit for declaration, preemption, mandatory injunction, permanent injunction as also for specific performance of contract.
The facts of the case are that the plaintiffs filed a suit on 23.01.1985 stating that the suit property described in the plaint was in the ownership of the respondent-defendant No.1 (hereinafter 'the defendant') Dilip Kumar. It was stated that the defendant No.1 had a large chunk of land and had divided it into plots for disposal and use as residential property. It was stated that one of the plot belonging to the defendant No.1 had been sold to one Hanuman Prasad Sharma (east-northern side), another to the plaintiff No.2 Shyam Lal (south-western side), and yet another plot was sold to Patashi Devi (North-Eastern side). All the three sale-deeds were duly executed according to the plaintiffs by the defendant No.2 as the special power of attorney holder of defendant No.1. It was stated that under the belief that the defendant No.2 was generally authorised to sell the property of the defendant No.1, the plaintiff No.1 i.e. Mohani Devi (since dead and now represented through her LRs) wife of plaintiff No.2 Shyam Lal had purchased another parcel of land adjoining the land earlier purchased by the plaintiff No.2, Shyam Lal by way of advancing a sum of Rs.15,000/- duly receipted in cash by the defendant No.2. It was stated that subsequently an agreement to sell was also executed by the defendant No.2 on 28.08.1978 in respect of the plot for which the advance had been made over by the plaintiff No.1 to the defendant No.2 on or about 24.07.1978. The plot in question was then stated to have been merged by the plaintiffs with the plot earlier purchased by the plaintiff No.2 under a registered sale-deed and gated. It was further averred in the plaint that the defendant No.2 continued to assure the plaintiffs that a formal sale-deed would be duly registered on obtaining a power of attorney by defendant No.2 from defendant No.1, who at the relevant time was residing in USA. The matter was thereupon rested and was not perused in earnest. Hence while the matter of execution of a registered sale-deed in respect of the plot in issue remained pending but the actual peaceful possession of the plot continued with the plaintiffs allegedly having been handed over by the defendant No.2. Thereafter the plot was used as stated the plaintiffs inter alia for storing their building material, for tying their cattle as also for keeping certain household articles therein. It was stated that a water connection on the disputed plot in the name of the plaintiff No.2 was also obtained. It was then alleged that however in breach of the agreement to sell dated 28.08.1978 in respect of the suit plot, it had been sold to the defendant Nos.3 & 4 vide two sale-deeds dated 02.01.1985 and 05.01.1985 respectively duly registered on 19.02.1985. It was stated that thereafter attempts were made by the defendant Nos.3 & 4, the alleged subsequent purchasers, to dispossess the plaintiffs from their lawful possession of the plot in dispute in the circumstances detailed hereinabove. The disputes as to possession of the suit plot then led to criminal action and FIRs came to be lodged between the contesting parties. It was further stated that the plaintiffs had always been ready and willing to perform their part of contract under the agreement to sell dated 28.08.1978 and have the sale-deed in respect of the disputed plot prepared and executed and that in the event no further amount was due and outstanding as consideration towards the suit plot as the agreed consideration of Rs.15,000/- had been paid under receipt dated 24.07.1978. The plaintiffs yet stated that they would be ready to pay such further amount as warranted in the event the sale-deed of the plot were directed to be registered in the name of the plaintiffs in view of the agreement to sell dated 28.08.1978 and the sale-deeds executed in favour of the respondent Nos.3 & 4 thereafter cancelled. It was submitted that in the facts averred in the plaint, the plaintiff No.1 was thus entitled for a decree of specific performance qua the suit property. Alternatively, rights over the disputed plot were also sought to be asserted with reference to the Rajasthan Preemption Act, 1966 (hereinafter 'the Act of 1966') on the ground of the plot earlier purchased by the plaintiff No.2 having a common wall with the plot in dispute and also for easement of necessity. It was stated that it was the duty of the defendant No.1 to notify the plaintiff No.2 of the intended sale of the plot to the defendant Nos.3 & 4 prior to its actual sale with reference the provisions of the Act of 1966. The transfer of the disputed plot by way of registered sale-deed in favour of defendant Nos.3 & 4 was alleged to be to just defeat the rights of the plaintiff No.2, who was thus entitled to have the said transaction declared illegal and a further direction to have the said sale registered in the name of the plaintiff No.2. A decree of permanent injunction was also sought to protect the plaintiffs' purported lawful possession of the disputed plot.
On service of the plaint on the defendants, they filed their separate written statements of denial. In his written statement, the defendant No.1 stated that neither had the defendant No.1 executed a power of attorney in favour of the defendant No.2 in respect of the disputed plot, nor otherwise authorised him to deal with the said plot on his behalf in any manner whatsoever. It was submitted that if any amounts had at all been advanced towards the suit plot to the defendant No.2 it was without any authorisation by the defendant No.1. It was stated that the plaintiffs had not been in possession of the disputed plot as would be testified to from the averments made by the plaintiff No.2 himself as defendant in suit No.214/1981 instituted by Hanuman Prasad Sharma wherein it had been admitted by the plaintiffs No.2 that the disputed plot was the property of the defendant No.1. It was also stated that in a suit instituted by the plaintiff No.2 himself on 05.10.1983 against Deendayal and Hanuman Prasad Sharma in the court of Munsif Magistrate (No.168/1983) the land on the northern side of his house (the suit property) had been shown as open land and not as the plaintiff's own property purportedly purchased from the defendant No.1 as was sought to be propagated in the suit before the trial court. It was stated that the plaintiff No.2 was thus bound by the principle of estoppel and could not be allowed to take a different stand in the suit as laid before the trial court and against his written statement in suit No.214/1981 filed by Hanuman Prasad Sharma and / or to claim to be in possession. It was stated that the earlier three plots sold by the defendant No.1 were all sold under independent special power of attorneys conferred for a specific purpose on each occasion by the defendant No.1 on the defendant No.2 and that the defendant No.2 was never generally authorised to deal with or sale immovable property of the defendant No.1 nor could be construed to be impliedly authorised on the basis of earlier specific power of attorney limited to the authority to sale specific plots. It was submitted that the entire case set up by the plaintiffs was a plan to grab the land belong to the defendant No.1 as it was adjoining plot earlier purchased by the plaintiff No.2 from defendant No.1 under a registered sale-deed.
In his written statement, the defendant No.2 completely denied the averments in the plaint with regard to his having acted on authorisation of the defendant No.1 or otherwise in respect of the disputed plot or having signed the receipt for Rs.15,000/- on 24.07.1978 or the alleged agreement to sell dated 28.08.1978. It was specifically stated that the defendant No.2 was never authorised by the defendant No.1 nor given any power of attorney in relation to the suit property albeit he had been given special power of attorney in respect of other plots which had indeed been sold. The defendant Nos.3 & 4 filed separate written statements. It was stated that the averments in the plaint was absolutely false. The defendant Nos.3 and 4 were bona fide purchasers for valuable consideration from the registered owner of the suit property without notice of any agreement to sell dated 28.08.1978 purportedly executed by the defendant No.2 on authorisation allegedly of defendant No.1 in favour of the plaintiff No.1 or payment of Rs.15,000/- as consideration in respect thereof on 24.07.1978 or at any other time.
On the basis of the pleadings, the learned trial court framed eleven issues which loosely translated in English are as under :
(1) Whether the defendant No.2 on behalf of the defendant No.1 had sold the disputed suit property (plot admeasuing 95' X 75') to the plaintiffs more particularly detailed in red colour in the map annexed to the plaint and received Rs.15,000/- from the plaintiffs while handing over possession of the suit property to them consequent to which the plaintiffs were in continuous possession of the suit property effective 24.07.1978 ?
(2) Whether the defendant No.2 executed the agreement to sell dated 28.08.1978 and the receipt for Rs.15,000/- and if yes then to what effect ?
(3) Whether the defendant No.5 as the power of attorney of the defendant No.1 sold the suit land to the defendant Nos.3 & 4 by sale-deed dated 02.01.1985 and 05.01.1985 respectively duly registered on 19.02.1985 and whether the said transaction was illegal and void on the ground of an earlier subsisting agreement to sell dated 28.08.1978 in respect of the disputed land executed by the defendant No.2 as the purported power of attorney of the defendant No.1 in favour of the plaintiff No.1 ?
(4) Whether the land shown in green colour in the map annexed to the plaint and marked as CIJE was the only way for the plaintiff No.2 to access his plot (earlier purchased by a registered sale-deed) ?
(5) Whether the plaintiff No.2 had any preemptory right on the disputed land marked as ABCD 1 A1 A2 on the basis of paragraphs 12, A and B of the plaint ?
(6) Whether the plaintiffs had any right for grant of permanent injunction ?
(7) Whether the receipt dated 24.07.1978 and the agreement to sell dated 28.08.1978 were fabricated and forged ?
(8) Whether the court fee paid by the plaintiffs was not sufficient and if so to what effect ?
(9) Whether the defendants were entitled to special damages and if yes then to how much ?
(10) What was the effect on the suit of the non-compliance of the Sessions Judge, Sikar order dated 25.03.1987 and of not handing over possession of the suit property to the plaintiff No.1 in accordance therewith in spite of a water connection thereon obtaining in the name of the plaintiff No.2 ?
(11) Relief ?
The plaintiffs, in support of their case, examined twelve witnesses and relied upon 75 documents, exhibited before the trial court. The defendant, in defence, examined five witnesses and relied upon sixteen documents. The learned trial court on consideration of the issues before it decided issues Nos.1, 2 & 7 together owing to the inter-linkage between them. Issue Nos.1 & 2 were decided against the plaintiffs and issue No.7 decided in favour of the defendants. Issue No.3 was also decided against the plaintiffs as were issue Nos.4, 5 & 6. Issue Nos.8 & 9 relating to the adequacy of court fee and the entitlement of the defendants to special damages were decided against the defendants. The learned trial court also held that there was no force in the contention of the plaintiffs that they were entitled to be put into possession of the disputed plot / suit property in terms of the order dated 25.03.1987, passed by the Session Judge, Sikar in a revision arising from proceedings taken qua the disputed plot / suit property under Section 145 Cr.P.C. Referring to the order dated 25.03.1987, the trial court held that it did not reflect any such specific direction and in fact was only an order whereunder proceedings under Section 145 Cr.P.C. being filed. It was also noted that it was for this reason that various applications by the plaintiffs to the Tehsildar, SDM and Session Judge, Sikar for being put into possession of the plot in issue had gone abegging and no orders for putting the plaintiffs in possession passed. It was also held that in these circumstances, it was not for the trial court adjudicating a civil suit to pass any order for the plaintiffs being put into possession on the ground of their having allegedly been dispossessed from the disputed property in proceedings under Section 145 Cr.P.C. and yet allegedly not having been put back in possession subsequent to the filing of the said proceedings.
In the context of the overall decision on the issues before it, the suit laid by the plaintiffs stood dismissed by the trial court under its judgment and decree dated 15.12.1999. Hence this first appeal.
Mr. R.K. Mathur, Sr. Advocate with Mr. Aditya Mathur, appearing for the plaintiffs has submitted that the learned trial court ought to have decreed the suit for specific performance on the basis of the receipt dated 24.07.1978 (Ex-6) and the agreement to sell dated 28.08.1978 (Ex-8) executed by the defendant No.2 stating himself to have been authorised by defendant No.1. It has been submitted that albeit no formal power of attorney had been executed by the defendant No.1 in favour of the defendant No.2 in respect of the disputed plot / suit property yet the learned trial court from the overall evidence on record as also facts and circumstances of the sale of three other plots in the vicinity of the disputed plot by the defendant No.2 as the special power of attorney of defendant No.1 ought to have held that the defendant No.2 had implied / ostensible authority to act on behalf of the defendant No.1 and make the sale transaction of the disputed plot / suit property in favour of the plaintiff No.1. It has been submitted that both exhibit-6 dated 24.07.1978 evidencing the receipt of Rs.15,000/- by the defendant No.2 as consideration for the sale of the disputed plot / suit property as also exhibit-8 i.e. the agreement to sell dated 28.08.1978 executed by the defendant No.2 in favour of the plaintiff No.1 ought to have been found to be good and valid against the defendant No.1 and binding on him by the trial court on the evidence of Nanu Ram (PW-5) and Shiv Narayan (PW-12). It has been submitted that the learned trial court instead erroneously proceeded to doubt and disbelieve the evidence of Nanu Ram (PW-5) on the sole ground that he was not the signatory either of the receipt dated 24.07.1978 or the agreement to sell dated 28.08.1978 and that of Shiv Narayan (PW-12) on the untenable ground that he was a chance and interested witness not being a resident of Sikar, but of a distinct place Silanvas, Tehsil Ladnoo, District Nagaur and had also been a client of the plaintiff No.2, an Advocate, between 1982 to 1985. It was submitted that the learned trial court was also overtly suspicious rather unfairly, of the receipt dated 24.07.1978 and more particularly the agreement to sell dated 28.08.1978 being drawn on a plain white paper and not on a stamp paper duly notarized. It has been submitted that the learned trial court also erred in holding that the signatures of Ladu Ram Joshi, defendant No.2, on the receipt dated 24.07.1978 and agreement to sell dated 28.08.1978 were forged as they did not match the signatures of Ladu Ram in the report of the Forensic Science Laboratory. Sr. counsel has submitted that there was ample evidence before the trial court in the form of the plaintiffs' witnesses, the report of the court commissioner dated 29.01.1985 and the water connection over the disputed plot in the name of the plaintiff No.2 to hold that the plaintiffs had been in possession of the disputed plot at least ever since the execution of the agreement to sell dated 28.08.1978. Sr. Counsel has further submitted that the learned trial court failed to appreciate that the purported admission of the plaintiff No.2 in various litigations before the District Courts in Sikar with regard to the disputed plot belonging to the defendant No.1 were wrongly inferred overlooking the context in which a registered sale-deed in respect thereof had not been executed in favour of the plaintiff No.1 consequent to which in terms of the Transfer of Property Act, the defendant No.1 continued to remain the legal owner even while the plaintiffs were in possession with a right to seek specific performance under the agreement to sell dated 28.08.1978. Sr. Counsel has submitted that aside of the above, the learned trial court also erred in failing to decree the suit as laid in the alternative in favour of the plaintiffs on the ground of preemptory rights of the plaintiff No.2 over the disputed plot under the Act of 1966 in view of his plot and the disputed plot sharing a common wall and easement of necessity. It has been further submitted that in the facts of the case, the plaintiffs ought to have been held entitled not only to the possession by way of a mandatory injunction of the disputed plot / suit property having been unlawfully dispossessed, but also for permanent injunction for thereafter safeguarding the rights and interest of the plaintiff No.1 in the disputed plot / suit property. It was thus submitted that the judgment and decree dated 15.12.1999 passed by the trial court was deserving of being set aside on the grounds detailed above and the suit as laid for specific performance liable to be decreed at the hands of this Court.
Mr. R.K. Agarwal, Sr. Advocate with Mr. Ajay Gupta, appearing for the defendants, has however supported the judgment of the learned trial court stating that it is a well considered and detailed judgment which ought to be upheld by this Court. Mr. Agarwal has submitted that the plaintiffs' suit was rightly dismissed as it was founded upon a purported authorisation of defendant No.2 to dispose of the immovable property of defendant No.1 without a duly executed power of attorney or authorisation in any manner known to law. It was submitted that the plaintiff No.2 is a practicing Advocate well conversant with the manner of entering into contracts qua immovable property but yet appears to have chanced upon a wholly untenable mechanism of acquiring immovable property. He submits that not only was the defendant No.2 not authorised to act for the defendant No.1 in respect of the suit property, yet even otherwise from the evidence on record before the trial court neither the receipt dated 24.07.1978 (Ex-6) nor agreement to sell dated 28.08.1978 (Ex-8) have been proved contrarily the trial court has for good reason found them to be forged and fabricated and decided issue No.7 against the plaintiffs and for the defendants. The further submission is that the defendant Nos.3 and 4 are bona fide purchasers for valuable consideration without notice of any subsisting agreement lawfully executed between the owner of the suit property and the plaintiff No.1 or 2 at the time of their purchase by a registered sale-deed and have subsequent to the purchase, with permission from competent authority built their residential house thereon. He has submitted that the plaintiffs have no case on any count whatsoever under the Specific Relief Act, 1963 or the Rajasthan Preemption Act, 1966. He further submitted without prejudice to his contentions that even otherwise the relief of specific performance of contract is a discretionary relief to which the plaintiffs cannot conceivably be entitled in the facts of the case. It was thus prayed that the appeal be dismissed.
Heard the counsel for the plaintiffs as also the defendants.
The outcome of this appeal fundamentally turns on the question as to whether the defendant No.2 if he did indeed execute the receipt dated 24.07.1978 (Ex-6) and the agreement to sell dated 28.08.1978 (Ex-8) was authorised to act on behalf of the defendant No.1 in respect of the suit property. Authorisation in law more particularly section 186 of the Indian Contract Act, 1872 (hereinafter 'the Act of 1872') can be effected by a principal to his agent either expressly or impliedly. Admittedly as per the plaintiffs' own case the defendant No.2 was never expressly conferred any authority for the sale of the suit property such as by way of a power of attorney by defendant No.1. On the plaintiffs' best case, defendant No.2 was only expectant of an authority by way of a power of attorney as would be plain from the language of Exhibit-8, the purported agreement to sell dated 28.08.1978 which makes it clear that the power of attorney for the defendant No.2 from defendant No.1 was to be obtained.
The question then which requires consideration is whether the defendant No.2 was ostensibly / impliedly / apparently authorised by defendant No.1 to act as his agent and to dispose of the suit property / disputed plot. In this regard, the salient feature to note is that it is not the plaintiffs' case either on the pleadings or in their evidence that the defendant No.1 made any representation to them / him by his conduct or otherwise in respect of the disputed plot / suit property by which the plaintiffs could reasonably deduce and infer or conclude reasonably that the defendant No.2 had any ostensible authority to enter into an agreement with regard thereto. It would bear repetition here that Exhibit-8, the purported agreement to sell dated 28.08.1978 in fact records that the defendant No.2 stated that he would obtain a power of attorney from defendant No.1. The case set up by the plaintiffs, to my mind, would thus at best be one of warranty of authority by the defendant No.2 and not one of ostensible authority by the defendant No.1 to defendant No.2 resulting from any representations made by the defendant No.1 to the plaintiffs. To the plaintiffs' own satisfaction and say the alleged agreement to sell dated 28.08.1978 was conditional on the defendant No.2 coming good on his warranty of authority and receiving a power of attorney from the defendant No.1. In M.V. Shankar Bhat & Anr. Vs. Claude Pinto since (deceased) by Lrs. [(2003) 4 SCC 86], the Hon'ble Apex Court has held that when an agreement is entered into subject to ratification by another, a concluded contract is not arrived at. And whenever ratification (in the case it would be the power of attorney) by another, not a party to the agreement is required, such a clause must be held to be a condition precedent for coming into force of a concluded contract. The agreement to sell, conditional in nature, in the aforesaid case was held by the Hon'ble Apex Court not to be executable in law. In S. Abdul Khader Vs. Abdul Wajid (dead) by LRs. & Ors. [(2008) 9 SCC 522], the Hon'ble Apex Court was dealing with the situation where at the time of executing an agreement to sell, a party thereto purporting to act on behalf of the owner had no apparent (again contra-distinguished from express) authority as of 21.02.1995 when the first agreement was signed and though a power of attorney was subsequently conferred on the said party it was again withdrawn soon thereafter such that when the second agreement to sell was executed by him on 18.05.1995 he was again without an authorisation. The Hon'ble Supreme Court in such a situation held that there was no legal sanction either qua the agreement to sell dated 21.02.1995 or qua the agreement to sell dated 18.05.1995 and consequently a suit for specific performance based thereupon was not competent. The Hon'ble Supreme Court has also looked at with disfavour on any implied or ostensible authority even in situation of a husband purportedly acting for his wife as in the case of Kammana Sambamurthy (dead) by LRs. Vs. Kalipatnapu Atchutamma (dead) & Ors. [(2011) 11 SCC 153].
Further even a case of ostensible authority cannot be at all be made out in the case at hand because as stated earlier ostensible / implied / apparent authority can in given situations be inferred only from representation by the principal by way of his word or conduct to a third party that a person had the requisite actual authority to do a particular act. As stated earlier the plaintiffs' case of authorisation by defendant No.1 to defendant No.2 flowed not by the acts or representations of the defendant No.1, but by the alleged claim of the defendant No.2 and thus no case whatsoever of the defendant No.2 acting on the ostensible / implied / apparent authority of the defendant No.1 can be even remotely made out. For authorities on agency by way of ostensible / implied authority reference may be made to Armagas Ltd. Vs. Mundogas S.A. [1986 AC 717 = (1986) 2 All ER 385] wherein the House of Lords has held that ostensible authority comes about when the principal, by word or conduct, has represented to a third party that a person was his agent with the requisite actual authority and the party thereupon dealing with the agent has entered into a contract in reliance on the representation made to him. The principal in the circumstances of his own representation would then be estopped from denying that actual authority existed. Further Lord Diplock, L.J. sitting in the Court of Appeal in the case of Freeman & Lockyer (a firm) Vs. Buckhurst Properties (Mangal) Ltd. & Anr. [(1964) 2 QB 480 = (1964) 1 All ER 630], has summarised four conditions which must be fulfilled to entitle a contractor to enforce against a company a contract entered into on behalf of the company by an agent who had no actual authority to do so. It has been held that in such situation it must be shown : (a) that a representation that the agent had authority to enter on behalf of the company into a contract of the kind sought to be enforced was made to the contractor; (b) that such representation was made by a person or persons who had actual authority to manage the business of the company either generally or in respect of those matters to which the contract relates; (c) that he (the contractor) was induced by such representation to enter into the contract, i.e., that he in fact relied on it; and (d) that under its memorandum or articles of association the company was not deprived of the capacity either to enter into a contract of the kind sought to be enforced or to delegate authority to enter into a contract of that kind to the agent. Clauses (a) and (b) above would be relevant to the case under consideration in this appeal.
Reverting to the facts of the present case, nothing from the evidence on record shows nor in fact it was even averred in the plaint or stated in evidence that the defendant No.1 had made any representation in any manner to the plaintiffs qua the suit property to create an ostensible / apparent agency authorisation under which defendant No.2 could act on his behalf in respect thereto. Contrarily, the evidence on record is contraindicative of an implied, apparent or ostensible agency inasmuch as in respect of earlier transactions the defendant No.1 had expressly authorised the defendant No.2 by way of special power of attorney when the sale of other plots were made in favour of Hanuman Prasad Sharma, Shyam Lal (plaintiff No.2) and Patashi Devi. The plaintiff No.2 having earlier made a purchase from the defendant No.1 through a special power of attorney in favour of defendant No.2 ought to have thus known that without the special power of attorney, the defendant No.2 had no authority to enter into any agreement to sell on behalf of the defendant No.1 in respect of the suit plot. In the circumstances thus obtaining, the plaintiff No.2, if at all he had made the payment of Rs.15,000/- to defendant No.2, had made it so at his own risk in spite of defendant No.2 having no title over the suit land or authority in law express or implied to enter into an agreement with regard thereto. On the best case of the plaintiffs as set up before the trial court a case of breach of warranty of authority could have been made out against the defendant No.2 subject to evidence on that count. If a breach of warranty of authority could be made out in a given case, the remedy for the plaintiffs would not be in a suit for specific performance against the defendant No.1, but for damages under Section 235 of the Act of 1872 against the pretended agent defendant No.2 in failing to abide with the warranty of authority.
In my considered view, in the facts thus obtaining there is no good ground whatsoever for this court to interfere with the findings of the trial court on issue No.1 holding that the defendant No.2 had not acted on behalf of the defendant No.1 in respect of the suit property by way of either signing the alleged the receipt dated 24.07.1978 (Ex-6) or the agreement to sell dated 28.08.1978 (Ex-8). With this primary issue being held against the plaintiffs and there being no privity of contract between the plaintiffs and the defendant No.1 in respect of the suit property which was owned by defendant No.1, in my considered view, the suit for specific performance as laid by the plaintiffs against the defendant No.1 was liable to fail and was rightly dismissed by the learned trial court. This Court concurs with the conclusions of the trial court for the reasons detailed hereinabove.
The difficulty of the plaintiffs however does not even end here. The learned trial court has on a detailed consideration of the evidence on record and even comparison of the signature of defendant No.2 held that the plaintiffs had not been able to prove that the the defendant No.2 had either executed receipt dated 24.07.1978 (Ex-6) or the agreement to sell dated 28.08.1978 (Ex-8). The trial court has also held from the evidence on record that in fact the payment of Rs.15,000/- was not proved by the plaintiffs to the defendant No.2 inasmuch as the Bank Manager Shanti Lal Jain (DW-5) had categorically stated in his evidence before the trial court that the sum of Rs.14,200/- on a cheque drawn in the name of defendant No.2 in fact had been withdrawn by the plaintiff No.2 himself. In my considered opinion, the finding of the learned trial court on the aforesaid issue of the defendant No.2 neither signing the receipt dated 24.07.1978 (Ex-6) and the agreement to sell dated 28.08.1978 (Ex-8) are based on a detailed analysis on the evidence on record and evaluation of the credibility of the witnesses before the trial court. The aforesaid findings are neither erroneous nor based on misreading of evidence and in my considered opinion, no ground whatsoever has been made out by the plaintiffs for the interference therewith at the hands of this Court. In any event, even if the plaintiffs had succeeded on their score, they would have been only entitled to damages under Section 235 of the Act of 1872 against the defendant No.2 for breach of his warranty of authority. Such a case however was not set up by the plaintiffs either in the pleadings in the suit or in the course of evidence. Consequently, the plaintiffs are not entitled to any relief whatsoever even against the defendant No.2 and issue No.7 has been rightly decided by the trial court.
As far as the preemptory rights of the plaintiffs under the Rajasthan Preemption Act, 1966 to purchase the disputed plot are concerned, based on sharing a common wall between the plot owned by the plaintiff No.2 and the suit property, this Court in the case of Nen Mal Vs. Kan Mal [1987 (II) RLR 278] and in the case of Dharam Pal Vs. Smt. Kaushalya Devi [1989 (2) RLR 826] respectively has held that the right to preemption cannot be based on vicinage. The trial court from the evidence on record also rightly held that the plaintiff No.2 had an alternative access to his preexisting adjoining plot. I thus find no force in the plaintiffs' case on the count of right of preemption. Issue No.4 and 5 are also therefore liable to be decided against the plaintiffs. In my considered opinion, with the conclusions of this Court on there being no privity of contract between the plaintiffs and the defendant No.1, the plaintiffs being unable to prove the execution of the receipt dated 24.07.1978 (Ex-6) and the agreement to sell dated 28.08.1978 (Ex-8) by the defendant No.2 and the plaintiffs having no preemptory rights, no case whatsoever can be made out in favour of the plaintiffs for grant of a permanent injunction in respect of the suit property. The plaintiffs have no legal rights or title over the suit property. The learned trial court has rightly found from the evidence on record that the evidence set up before it by the plaintiffs with regard to the then possession was contradictory in nature and unsustainable to make out a case for grant of permanent injunction. This court concurs with the said finding of the trial court. In any event the suit property has since been admittedly sold to the defendant Nos.3 & 4, who are presently in possession thereof having constructed their house thereon with due permission from the competent authority and it is settled law that there can be no injunction against the true owner.
On issue No.3 as to whether the purchase of the suit property by the defendant Nos.3 & 4 by way of registered sale-deeds dated 02.01.1985 and 05.01.1985 duly registered on 19.02.1985 before the jurisdictional Sub-Registrar was valid, I am of the considered view that no subsisting valid agreement to sell as set up in the plaintiffs' suit being found by the trial court as also this Court, no drag on the right to alienate his property in the suit land by the defendant No.1 to the defendant Nos.3 & 4 through his duly authorised agent (defendant No.5) can be found. The sale by the defendant No.1 to defendant Nos.3 & 4 was thus wholly legal and valid. Finally in respect of issue No.10, I am in complete agreement with the trial court that the civil court could not be required to enforce the purported order dated 25.03.1987, passed by the Session Judge, Sikar in proceedings arising from action under Section 145 of the Code of Criminal Procedure. The learned trial court has correctly held that the order dated 25.03.1987 passed by the Session Judge, Sikar was not capable of being construed as a direction to put the plaintiffs in possession of the suit land nor in fact repeated efforts to taken possession of the suit land thereunder had been of any avail. To my mind, in the suit as laid by the plaintiffs based on a purported agreement to sell dated 28.08.1978 (Ex-8) and right of preemption, execution of an order in proceedings under Section 145 Cr.P.C. could not be sought. More so when the said order dated 25.03.1987, passed by the Session Judge, Sikar is not capable of being construed as a direction to put the plaintiffs in possession of the disputed plot.
Consequently, in my considered opinion, there is no force in the appeal. Nothing erroneous, nor illegal nor any misdirection in law in the judgment and decree of the trial court passed on 15.12.1999 can be made out. The well considered conclusions of the trial court on facts are based on a detailed analysis of the evidence before it. The trial court has also correctly applied the obtaining law to the facts found.
The appeal is accordingly dismissed.
(ALOK SHARMA), J MS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, Jr. P.A