Rajasthan High Court - Jodhpur
Smt.Heera Devi vs Pep Singh & Ors on 3 August, 2016
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. CIVIL MISC. APPEAL NO. 215/2012
Shrimati Heera Devi
Vs.
Pep Singh and Ors.
Date of Judgment :: 3.8.2016
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. VN Kalla, for the appellant/s.
Mr. K.R. Saharan, for the respondent/s.
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BY THE COURT:
This appeal is directed against the order dated 23.12.2011 passed by the trial court, whereby the appellant's application under Order IX, Rule 4 & 7 CPC has been rejected.
The appellant filed a suit for specific performance of contract against the respondent - Pep Singh and legal representatives of Piru Ram based on the averments that Pep Singh had executed an agreement to sale in favour of Piru Ram and in turn, Piru Ram had executed an agreement to sale in favour of the appellant-plaintiff. Based on the averments made in the plaint, specific performance of the agreement executed by Piru Ram in favour of the plaintiff was sought and it was prayed that sale deed be executed by the dependents 1 to 6, which included Pep Singh and legal representatives of Piru Ram.
The suit came to be dismissed by the trial court on 14.5.2010 for non-appearance of the parties. 2
The appellant filed application under Order IX, Rule 4 & 7 CPC, which was rejected by the trial court on 23.12.2011, against which the present appeal has been filed.
Notices were ordered to be issued by this Court on 10.2.2012. On the notices, it was reported that respondent No.1 has died 2-3 years back. In view of the said report, learned counsel for the appellant was called upon to make submissions that even if the appeal is allowed and the suit for specific performance is restored back, in absence of the legal representatives of deceased Pep Singh, whether the suit can survive.
It is submitted by learned counsel for the appellant that as the prayer in the suit is confined to the specific performance of contract executed by Piru Ram in favour of the plaintiff and the relief has been sought jointly and severally against Pep Singh and legal representatives of Piru Ram has even in absence of Pep Singh and / or his legal representatives, the suit can still proceed and the appeal as well as the suit (if restored) would not abate.
I have considered the submissions made by learned counsel for the appellant and have perused the material available on record.
It is not in dispute that Piru Ram has only an agreement to sale in his favour, who entered into further agreement with the appellant, which agreement is sought to be specifically performed by way of present suit, however, in view of Section 54 of the Transfer and Property Act, 1882, as the agreement to 3 sale by itself does not confer any right on the party, the suit was rightly filed against Pep Singh also as he continuous to be owner of the suit property.
Once the suit / appeal against Pep Singh abates, the relief as sought by the appellant, despite the fact that the prayer has been made that decree be passed jointly and severally, cannot be granted as till such time Pep Singh joins in the execution of the sale deed in favour of the appellant, in case the suit is decreed, the appellant cannot perfect his title qua the suit property as Piru Ram / his legal representatives does not have title to the property in question.
In view of the fact that the legal representatives of deceased Pep Singh, who had died 2-3 years back have not been brought on record within stipulated time, the appeal filed by the appellant abates and the same is, therefore, dismissed as having abated.
(ARUN BHANSALI), J.
rm/88