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2. It is the case of the plaintiffs that defendants No. 1 to 3 have failed to satisfy the plaintiffs about the title clearance of the property. Thereafter, the plaintiffs gave a notice to defendants No. 1 to 3 on 21-12-1982 asking them to inform the plaintiffs whether the title of the property is clear and marketable and whether it is free from all encumbrances and if it is so, to execute the sale deed in favour of the plaintiffs. As per the averments made in paragraph 5 of the plaint, said notice was received by defendants No. 1 to 3 on 24-12-1982. As per the averments made in paragraph 6 of the plaint, defendants No. 1 to 3 sent a notice dated 20-12-1982, which was received by the plaintiffs on 27-12-1982, whereby defendants No. 1 to 3 pointed out to the plaintiffs that Banakhat in question is cancelled. Thereafter, defendants No. 1 to 3 sent a letter of attornment dated 3-1-1983 informing the plaintiffs that the property in question is sold to defendant No. 4. As the defendants No. 1 to 3 have not executed the sale deed in favour of the plaintiffs, the plaintiffs filed aforesaid suit for specific performance of agreement to sell dated 28-5-1982. The plaintiffs have asked for declaration to the effect that the sale deed executed by defendants No. 1 to 3 in favour of defendant No. 4 dated 3-1-1983 may be held to be illegal and not binding to the plaintiffs and it was also prayed that a decree may be granted asking defendants No. 1 to 3 to act as per the agreement dated 28-5-1982 and for directing defendants No. 1 to 3 to execute sale deed in favour of the plaintiffs in connection with agreement to sell dated 28-5-1982.

13. Before answering the aforesaid questions, reference is required to be made to the agreement to sell, which is at Exh.64. Said agreement is dated 28-5-1982. As per the aforesaid agreement, defendants No. 1 to 3 agreed to sell the property to the plaintiffs for Rs. 28,000/- and at the time of executing said agreement, the plaintiffs had paid Rs. 2,800/- in cash to defendants No. 1 to 3. As per Clause 3 of the said agreement, time limit fixed for performance of the Banakhat is six months. It is provided in the said agreement that within said time limit, sellers were to satisfy the plaintiffs about the title clearance of the suit property. In Clause 4 of the agreement, it is provided that within the aforesaid period, the sellers were required to obtain necessary permission under the ULC Act, 1976 for selling the property, and after getting such permission from ULC authority, sale deed was to be executed. In Clause 6 of the agreement, it is provided that within the stipulated time of six months, if the sellers satisfy the purchasers about the title clearance of the property and obtains necessary permission under the ULC Act, and yet the purchasers (plaintiffs) fail to get the sale deed executed within the stipulated time, the Banakhat shall stand cancelled and the amount paid towards the earnest money shall be forfeited. Said agreement is signed by the sellers as well as purchasers and some witnesses.

20. Said witness has given evidence with regard to agreement to sell dated 28-5-1982. Said witness has said in his chief examination that defendants No. 1 to 3 had failed to point out anything regarding title clearance within six months, as provided in the agreement to sell. He also stated that defendants No. 1 to 3 have never informed either orally or in writing that the title regarding the suit property is clear. He has also further stated that defendants No. 1 to 3 had orally assured the plaintiffs that sale deed will be executed in due course. Said witness has said that at the time when they obtained property card, they came to know that said property was under mortgage of a cooperative bank. Said witness has also stated about the notice given to defendants No. 1 to 3 dated 21-12-1982, which is at Exh.65 as well as notice given by defendants No. 1 to 3 dated 20-12-1983, which is at Exh.66. Said witness has also stated in his chief examination that prior to notice dated 20-12-1982, defendants No. 1 to 3 had not sent any letter or notice to the plaintiffs.

22. Said witness has admitted in paragraph 4 of his cross-examination that he is doing business of building contract and he is aware about the Urban Land Ceiling Act. Said witness has further admitted that he had never requested defendants No. 1 to 3 to extend the date of Banakhat. He has also admitted in paragraph 4 of his cross-examination that date mentioned in Banakhat was to be over by 28-11-1982, but no occasion had taken place to get the said Page 0188 date extended. He has also admitted that he had never gone to defendants No. 1 to 3 for verifying the documents in connection with title clearance of the suit property. He has, however, stated that he had gone at the house of defendants No. 1 to 3 for the purpose of getting sale deed executed. He has denied the suggestion that notice dated 20-12-1982, which was sent by defendants No. 1 to 3 by way of UPC was received by him on 21-12-1982. He has also denied the suggestion that after receiving said notice he had sent notice dated 21-12-1982, asking defendants No. 1 to 3 to execute the sale deed. He denied the suggestion that the plaintiffs were not ready and willing to perform their part of the contract. He has also denied suggestion that at the time when the agreement was entered into, the property was not subjected to any mortgage. He has admitted in paragraph 7 of his cross-examination that he was not aware as to when the title of the property was cleared.