Andhra HC (Pre-Telangana)
K. Raghavendra Raju vs Syed Yousuf And Ors. on 1 March, 2005
Equivalent citations: 2005(3)ALD79, 2005(3)ALT645, AIR 2005 (NOC) 445 (AP), 2005 A I H C 2795, (2005) 3 CIVILCOURTC 192, (2005) 3 RECCIVR 481, (2005) 3 ANDHLD 79, (2005) 3 ANDH LT 645
ORDER A. Gopal Reddy, J.
1. This revision petition is directed against the order dated 23-11-2004 passed in OS(SR) No. 8795 of 2004 on the file of Principal District Judge, Ranga Reddy District in returning the plaint filed for specific performance of agreement of sale dated 10-2-1994.
2. The petitioner herein is the plaintiff and he instituted the above suit against the respondents-defendants for specific performance of agreement of sale dated 10-2-1994 entered into with Defendants 1 to 5 for the sale of agricultural land measuring Ac.0-38 guntas, in Sy.No. 110, Ac.1-14 guntas in Sy.No. 115, Ac.1-21 guntas in Sy.No. 116, and Ac.0-26 guntas in Sy.No. 118, total admeasuring Ac.4-19 guntas, situated at Hydernagar Village, Balangar Mandal, Ranga Reddy District. In the plaint it is alleged that the plaintiff was always ready and willing to perform his part of the contract and after execution of the agreement of sale and after receipt of total sale consideration of Rs. 12 lakhs on various dates as mentioned in the plaint, the heirs of late Fathima Bee i.e., Defendants 1 to 6 and the heirs of late Syed Abdul Quader i.e., Defendants 7 to 9 are postponing the execution and registration of sale deed on one pretext or the other with a dishonest intention to make unlawful gain against the plaintiff. It is alleged that after receipt of legal notice dated 26-1-2004 got issued by the plaintiff, it came to light Defendants 4 and 6 have executed the sale deed dated 30-4-2003 in favour of Defendant No. 10 in respect of an extent of Ac.0.11.74 guntas in Sy.No. 110 and so also Defendants, 1, 3, 4 and 6 executed an agreement of sale-cum-GPA dated 4-4-2003 in favour of Defendant No. 10 in respect of another extent of Ac.0.26 guntas in Sy.No. 118, which lands are subject-matter of agreement of sale dated 10-2-1994. In view of the same, Defendant No. 10 was also impleaded in the suit.
3. The plaint was returned by the office of the Court below with the following objections:
(1) How the plaintiff is entitled for specific performance in respect of suit schedule property with seeking the declaration that the Defendants 4 and 6 executed registered sale deed in favour of Defendant No. 10 and execution of GPA-cum-agreement of sale in favour of Defendant No. 10?
(2) How the suit is within time?
On being re-presented the plaint, the Court below passed the impugned order.
4. Learned Counsel for the petitioner-plaintiff contends that in a suit for specific performance of an agreement of sale, the relief also can be claimed against a subsequent purchaser, who is in possession of the suit property without seeking any declaration for cancellation of sale deed and the claim falls under Section 19(b) of the Specific Relief Act (for short "the Act"). He further submits that return of the plaint by the Court below with the objection that unless the petitioner seeks the relief of cancellation of sale deed executed by defendants in favour of Defendant No. 10, the relief cannot be granted, is not justified. In support of his submission, he relies upon the following judgments: Suryakantamma v. Venkatachalam, , Durga Prasad v. Deep Chand, , and Ramji Lal v. Ram Pershad, .
5. This Court in the case of Suryakantamma (supra) held that when there is an allegation in the plaint that agreement to sell is obtained collusively to defeat the plaintiff's rights under the agreement to sell executed, the said allegation really brings, the case under Section 27(b) of the Act (old) corresponding to Section 19-B of the Act (new), which states that specific performance of a contract may be enforced against any person claiming under the original vendor arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. There cannot be any doubt that specific performance can be asked for and granted against any subsequent transferee with a notice of the prior contract.
6. The Supreme Court in the case of Durga Prasad (supra) while considering the scope of Section 27 of the Act (old) and considering the divergent opinions of various High Courts held that proper form of decree is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. He does not joint any special convenants made between the plaintiff and his vendor, all he does is to pass on his title to the prior transferee.
7. Similar is the view taken by the Delhi High Court in the case of Ramji Lal (supra), wherein it was held that in the absence of any prayer for cancellation of sale in the suit, the plaintiff can sue for specific performance of the contract joining the subsequent purchasers who he claimed in law were equally bound with the original contracting party as they had notice and thus were bound by the agreement to sell and accordingly upheld the decree passed by the Trial Court.
8. In view of the law declared as above, it emerges that in a suit for specific performance of an agreement of sale, it is not obligatory on the plaintiff to seek for cancellation of sale deed executed in favour of the subsequent purchaser but he can join him as defendant for directing him to execute the sale deed along with vendor in favour of the plaintiff as per the agreement of sale entered into by him with the vendor of the said defendant, provided the said agreement of sale in favour of the plaintiff is prior to sale deed of subsequent purchaser. The only exception to Sub-section (b) of Section 19 is that transferee i.e., 10th defendant if he has paid his money in good faith and without notice of the original contract, plaintiff has to seek a declaration for cancellation of such sale deed, which can be gone into during the course of trial if any such defence is taken by Defendant No. 10. While registering the suit, the Court need not go into the said aspect but it can simply go through the averments made in the plaint. In view of the same, learned Judge erred in coming to the conclusion that the conditions mentioned in Section 19-B are not satisfied and the plaintiff has to seek the relief of cancellation of sale deed in favour of the 10th defendant, the same is accordingly set-aside. The Trial Court is directed to number the suit, if it is other wise in order, and proceed accordingly.
9. The civil revision petition is accordingly allowed.