Jharkhand High Court
Rubi Devi vs Ritesh Kumar Gupta on 6 March, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 5 of 2023
1. Rubi Devi, aged about 45 years, Wife of Late Suraj Kumar Gupta,
2. Shalini Kumari, aged about 25 years, Daughter of Late Suraj Kumar
Gupta
3. Mini Kumari, aged about 20 years, Daughter of Late Suraj Kumar
Gupta
4. Sunny Kumar Gupta, aged about 19 years, Son of Late Suraj Kumar
Gupta,
5. Saroj Devi, aged about 68 years, Wife of Late Madan Prasad Gupta,
6. Jyoti Jamuar, aged about 53 years, Daughter of Madan Prasad Gupta
All residents of Makatpur Chowk, Giridih, P.O. & P.S. - Giridih (T),
District - Giridih (Jharkhand)
... ... Defendants/Respondents/ Appellants
-Versus-
1. Ritesh Kumar Gupta, Son of Rabindra Prasad Gupta, Resident of
Makatpur within P.S. - Giridih (T), P.O. and District - Giridih
... ... Plaintiff/Appellant/Respondent
2.Shivani Devi, Wife of Late Kishore Prasad Gupta,
3.Sheetal Adhikari, Daughter of Late Kishore Prasad Gupta,
4.Pooja Singh, Daughter of Late Kishore Prasad Gupta
5.Priti Singh, Daughter of Late Kishore Prasad Gupta
No.2 to 5 Residents of 43/11 Ground Floor, C.N. Roy Road, Picnic
Garden, P.O. & P.S. - Kolkata, District - Kolkata - 700039
6. Amit Gupta @ Rinku Gupta, Son of Late Madan Prasad Gupta,
Resident of Makatpur Chowk, Giridih, within P.S. - Giridih (T), P.O.
and District - Giridih
7. Sandeep Kumar Gupta, son of Late Kishore Prasad Gupta, Resident of
Ground Floor, 43/11, C.N. Roy Road, P.O. & P.S. - Kolkata, District
- Kolkata - 700039
... ... Defendants/Respondents/ Proforma Respondents
---
CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
—
For the Appellants : Mr. Sudarshan Shrivastava, Advocate
: Mr. Amit Kr. Verma, Advocate
For the Respondent No. 1 : Mr. Himanshu Kumar Mehta, Advocate
: Mrs. Manjusri Patra, Advocate
: Mr. Rishav Raj, Advocate
For Respondent Nos. 2 to 7 : none
1
—
Lastly heard on 20.01.2025
th
07/06 March 2025
1. This second appeal has been filed challenging the Judgment and
Decree dated 11.11.2022 and 24.11.2022 respectively passed in Civil
Appeal No. 08 of 2020 by the learned Principal District Judge, Giridih
reversing the Judgment and Decree dated 21.01.2014 and 03.02.2014
respectively passed in Title Suit No. 36 of 2006 by the learned Civil Judge
(Sr. Division) III, Giridih.
2. The case arises out of suit seeking specific performance of contract
of sale of immovable property.
3. The appellants and Proforma Respondent No. 6 are representing the
Defendant Nos. 2 to 4 of the suit. The Respondent Nos. 2 to 5 and 7 are
representing the original Defendant No.1 and Respondent No.1 is the
plaintiff of the suit.
4. The suit was filed by Ritesh Kumar Gupta (plaintiff) seeking a
decree against the original Defendant No.1 for specific performance of
registered agreement of sale dated 06.09.2005 (exhibit-1) for sale of suit
property. The suit was dismissed and the judgment and decree of the trial
Court has been set-aside by the learned Appellate Court and the appellate
court directed the legal heirs and successors of Kishore Prasad Gupta
[original Defendant No.1] to execute the registered sale-deed with respect
to the suit property in favour of the plaintiff. The legal heirs and
successors of Kishore Prasad Gupta [original Defendant No.1] have not
filed any appeal. The appeal has been filed by the defendant no.2
(purchaser of the suit property and wife of defendant no.3) and other legal
heirs of defendant no.3 and also by the legal heirs of defendant no.4. The
defendant no.2 has purchased the suit property vide registered sale-deed
dated 29.05.2006 (exhibit-C) executed by Kishore Prasad Gupta [original
Defendant No.1] pursuant to purported unregistered agreement of sale
dated 06.05.2005 (exhibit-B) between Kishore Prasad Gupta [original
Defendant No.1] and defendant no.4. The registered sale-deed dated
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29.05.2006 (exhibit-C) has been executed by Kishore Prasad Gupta
(original defendant no.1) through the power of attorney holder, original
defendant no.3. The suit was filed for specific performance of contract
being registered agreement dated 06.09.2005 (exhibit-1) between the
plaintiff and the original defendant no.1.
5. The suit was dismissed primarily on the ground that the suit
property was a joint property of defendant nos.1 to 4 and therefore the
registered agreement of sale dated 06.09.2005 (exhibit-1) was not a valid
document and was void. While dismissing the suit the learned trial Court
also held that the defendant no.1 was not entitled to make any agreement
of sale and the joint share cannot be alienated without the consent of other
coparceners. The learned first appellate Court reversed the judgement and
decree holding that there was a valid family partition and the suit property
was the exclusive property of the defendant no.1 which could be alienated
by him and consequently the registered agreement of sale dated
06.09.2005 (exhibit-1) was valid. The learned appellate Court held the
readiness and willingness to perform the part of the contract in favour of
the plaintiff. The learned first appellate Court also held that the
unregistered agreement of sale dated 06.05.2005 (exhibit-B) was an
afterthought to by-pass the binding effect of registered agreement of sale
dated 06.09.2005 (exhibit-1).
6. This second appeal was admitted on 02.08.2023 on the following
substantial questions of law: –
1. Whether the appellate court committed perversity by
decreeing the suit of the plaintiff even though as the plaintiff
knowing pretty well that the defendant no. 1 has sold the suit
property to the defendant no. 2 vide registered sale deed dated
29.05.2006 marked as Exhibit ‘C’ yet did not pray for
cancellation of the aforesaid sale deed, marked as Ext. ‘C’.
2. Whether the suit property being a joint family property of the
defendants on 06.09.2005, learned First Appellate court
committed a perversity by ignoring the fact that the defendant
no. 1 alone, was not competent to enter into an agreement for
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sale, with the plaintiff vide Ext. 1 on 06.09.2005, in view para 14
and 15 of the judgment of the co-ordinate Bench of this court, in
the case of the Bharat Singh vs. Aklu Hazam reported in 2002
1 JLJR 565.
Argument of the Appellants
7. While giving the foundational background, the learned counsel for
the appellants submitted that on 06.05.2005, there was an agreement of
sale between the defendant no. 1 [Kishore Prasad Gupta] and defendant
no. 4 [Madan Prasad Gupta] and with respect to the same property, there
was another agreement of sale dated 06.09.2005 between the plaintiff and
defendant no. 1. He submits that on 29.05.2006, the defendant no.1
executed the sale deed in favour of the defendant no. 2 [Rubi Devi]
through the power of attorney holder i.e. original defendant no.3 pursuant
to the earlier agreement of sale dated 06.05.2005 and thereafter, the suit
for specific performance of contract was filed on 07.06.2006, but no
prayer was made to set-aside the sale-deed dated 29.05.2006. He has also
submitted that the sale-deed dated 29.05.2006 was exhibited as exhibit-C
before the learned Court but the plaintiff did not take any step to challenge
the sale-deed. The learned counsel submits that once the sale-deed was
already executed in favour of the defendant no. 2 [Rubi Devi] there was
no question of grant of specific performance of contract and to direct the
defendant no.1 to execute sale-deed in favour of the plaintiff.
8. The learned counsel further submitted that the learned trial Court
has given a finding that there was no partition but the learned Appellate
Court has reversed the said finding by holding that there was partition. He
submits that in the suit for specific performance of contract, there was no
occasion to enter into such a dispute as to whether there was any partition
or not. The learned counsel has also submitted that the onus was upon the
plaintiff to prove that there was a partition and that the suit property fell in
exclusive possession of the defendant no. 1 by virtue of such a partition
and the property could be subject matter of agreement dated 06.09.2005
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executed by the defendant no.1 and to get the same implemented through
suit for specific performance of contract against defendant no.1.
9. The learned counsel for the appellants has submitted that initially
the suit was filed only against one defendant seeking specific performance
of contract and subsequently, the purchaser, the executor of registered sale
deed dated 29.05.2006 and also the party to the earlier agreement of sale
dated 06.05.2005 were added as defendant no.2, 3 and 4 respectively. The
learned counsel has submitted that though the sale deed dated 29.05.2006
was not challenged in as much as no prayer was made to set aside the
same, but even the relief portion of the plaint was not amended adequately
so as to direct the purchaser to join in the execution of sale deed if the suit
was allowed. He has submitted that the learned first appellate court while
setting aside the trial court’s decree has directed only the respondent nos.
1A to 1D and 7 to execute the sale deed. The learned counsel has
submitted that since the plaint was not amended, the learned appellate
Court passed the decree directing the legal heirs and successors of the
defendant no.1 (Kishore Prasad Gupta) to execute the sale deed in favour
of the plaintiff (Ritesh Kumar Gupta), although the sale deed in
connection with the same property was already executed in favour of the
defendant no.2 by the defendant no.1 vide sale deed dated 29.05.2006. He
submits that considering the nature of relief prayed for in the original suit,
it was for the plaintiff to amend the plaint so as to get appropriate relief
against the purchaser of sale deed dated 29.05.2006, namely, Rubi Devi,
but no such steps were taken.
Argument of the Respondent No.1 (Plaintiff)
10. Learned counsel appearing on behalf of the Respondent No.1, on
the other hand, has opposed the prayer and has submitted that there was
no need to challenge the sale-deed dated 29.05.2006 as the plaintiff was
seeking to enforce the agreement dated 06.09.2005 by filing suit on
07.06.2006. He has also submitted that the plaintiff had no knowledge
5
about the sale-deed executed on 29.05.2006 and therefore, there was no
occasion to challenge the same in the suit.
11. The learned counsel for the respondent no.1 (plaintiff) has referred
to the judgments passed by Hon’ble Supreme Court reported in (1953) 2
SCC 509 (Lala Durga Prasad and Ors. Vs. Lala Deep Chand and Ors.)
paragraph 40, 41 and 42; (2022) 7 SCC 384 (P. Ramasubbamma Vs. V.
Vijayalakshmi and Ors.) paragraph 5.3 and 16, and (2024) 8 SCC 83
[Maharaj Singh and Ors. VS. Karan Singh (dead) through legal
representatives and Ors.] paragraph 20, 22 and 24 to submit that there
was no need to challenge the sale deed, and therefore, the sale deed was
not challenged. He submits that the 1st substantial question of law is fit to
be answered in favour of the respondent no.1(plaintiff). He has submitted
that merely because there was no further amendment in the prayer portion
of the plaint, the same is not fatal to the relief granted to the plaintiff and
in view of the aforesaid three judgments, the point of law is fit to be
answered in favour of the respondent no.1(plaintiff).
12. So far as substantial question of law no.2 is concerned, the learned
counsel has submitted that there is no perversity in connection with the
finding of the learned first appellate Court. The learned appellate Court
has held that there was previous partition amongst the family members.
Case of the Plaintiff
13. The case of the Plaintiff as per the Plaint is as under:
A. The defendant no.1 had land house building situated within
municipal area of Giridih which was acquired by his father in the
name of his mother by virtue of registered sale deed dated
07.09.1960. The parents died leaving behind their sons namely,
Ratan Prasad Gupta, Madan Prasad Gupta, Umesh Prasad Gupta,
Prakash Prasad Gupta, Suresh Prasad Gupta, Sunil Prasad Gupta
and Kishore Prasad Gupta (defendant no.1).
B. After the death of parents, the defendant no. 1 and his brothers
amicably partitioned the suit property along with other properties
6
at Dhariyadih and as such, had exclusive respective shares and
Takhta. As per the amicable family partition, 5 brothers namely
Umesh, Kishore, Suresh, Sunil and Prakash got share in the suit
building whereas brothers were allotted their share in the land and
house at Dhariyadih.
C. It was further case of the plaintiff that all the brothers, after
amicable partition, got their names mutated and began paying rent
and tax thereon and accordingly, defendant no. 1 got his name
mutated as such paid rent and taxes regularly and exercised all acts
of ownership and possession in the suit property and separate
holding no. 539(H) was opened. The defendant no. 1 was the
absolute owner of the suit property and had the right to sell and
transfer the property.
D. The father of the plaintiff namely Rabindra Prasad Gupta was
running a shop in the portion of the suit premises along with that of
the portion belonging to Umesh Prasad Gupta. The father of the
plaintiff had taken the property on rent and paid rent to the father
of the defendant no.1 and thereafter, to the defendant no.1 and as
such, the plaintiff became fully assured about the right, title and
possession of the defendant no.1.
E. In the month of September, 2005, the defendant no.1 was in
need of money and he decided to sell and transfer the suit premises
and approached the plaintiff to sell the suit premises to the plaintiff
for a consideration amount of Rs. 14,11,000/-. The plaintiff
accepted the offer and plaintiff and the defendant no. 1 mutually
agreed and they arrived at an agreement of sale and purchase of the
land house and premises involved in the suit within the stipulated
period of 9 months. The plaintiff paid an amount of Rs. 2 lakhs by
way of advance and the balance consideration of Rs. 12,11,000/-
was to be paid. As per the agreement, the plaintiff was to pay Rs. 6
lakhs upto 15th October 2005 and remaining Rs. 6,11,000/- was to
7
be paid at the time of execution of the registered deed in favour of
the plaintiff within a period of 9 months. In pursuance of the
agreement, the deal was executed by the plaintiff and the defendant
no.1 and it was presented for registration and the same was
registered and thus, both the parties entered into a registered
concluded contract for sale of the suit premises on 06.09.2005 to
be performed within a period of 8 months i.e. upto 05.05.2006.
F. The plaintiff altogether paid Rs. 8 lakhs to the defendant no.1
towards the consideration and the remaining Rs. 6,11,000/- was
due to be paid at the time of execution of the registered deed of
sale, but as per undertaking dated 18.10.2005 the defendant no. 1
did not deliver the Khas vacant possession of the remaining portion
of the suit premises on the pretext that the same was not being
vacated by another tenant and allowed the plaintiff to continue in
occupation of the part of the premises in his tenancy as absolute
owner from November, 2005. The plaintiff was not required to pay
rent and the security amount of Rs. 45,000/- lying with the
defendant no.1 was to be adjusted towards consideration amount of
the suit premises.
G. The plaintiff, after coming into occupation and possession of
the suit premises as absolute owner, was delivered the possession
of the entire roof of the suit premises and the plaintiff got it
encircled with wall and thereafter, had been exercising all acts of
possession and ownership over the said part of the suit premises
except the part of the premises which was under the tenancy of a
3rd person. Ultimately, the 3rd person also vacated the suit premises
and delivered the Khas possession to the defendant no.1.
H. In the meantime, the brother of the defendant no. 1, namely,
Sunil Prasad Gupta served a notice dated 10.01.2006 threatening
the plaintiff not to purchase the suit premises and another notice
was sent to revoke the contract and take back the amount.
8
Thereafter, the plaintiff got a notice published in newspaper dated
02.03.2006 circulating in the locality informing the persons in the
locality and defendants in particular that the defendant no.1 has
entered into an agreement with the plaintiff to sell the property.
The plaintiff repeatedly approached the defendant no.1 for
execution of registered sale-deed but he refused to execute the
sale-deed on 31.05.2006 and then the suit was filed. Ultimately, a
complaint case was also instituted by the plaintiff alleging fraud
and cheating.
Case of Defendant No.1
14. The case of defendant no.1 as per Written Statement is as under:
I. The defendant no.1 contested the suit by stating that the suit
was not maintainable; there was no cause of action; it was
barred by the provisions of Specific Relief Act and barred by
limitation. It was also asserted that there were other co-sharers
of the property under the family arrangement dated 17.02.1995
and 13.04.1995 and that the defendant no.1 was never entitled
to execute any agreement for sale or execute any sale-deed in
favour of a stranger as the co-sharers would have preferential
right and that the suit was bad for non-joinder of necessary
parties.
II. It was further asserted by the defendant no. 1 that Madan
Prasad Gupta and Rubi Devi were necessary parties to the suit
because the defendant no.1 executed earlier an agreement of
sale in favour of his brother Madan Prasad Gupta on
06.05.2005 in presence of witnesses and received Rs. 2 lakhs
earnest money and subsequently, on the strength of power of
attorney dated 24.05.2006 the authorized attorney holder
executed a registered sale-deed dated 29.05.2006 in favour of
Rubi Devi. The suit property was said to be ancestral property
and the son of defendant no. 1 namely Sandeep Kumar Gupta9
had a share in the property and he was also said to be a
necessary party. The defendant no. 1 denied partition amongst
7 brothers and asserted that the 7 brothers were using the entire
holding as per their convenience. He also asserted that demand
in the municipality was running jointly in the name of all 7
brothers who were paying rent at the Anchal and rent receipt
was jointly issued. It was also stated by the defendant no.1 that
the plaintiff was still a tenant in the portion of the suit property
and his status was only and only as that of a tenant under Rubi
Devi who purchased 2.30 decimals of land and house standing
thereon from the defendant no. 1 through registered sale-deed
dated 29.05.2006 and the plaintiff was bound to pay rent to
Rubi Devi.
III. It was denied by the defendant no.1 that he was in urgent need
of money and he offered the plaintiff to sell the suit property,
rather it was asserted that an agreement of sale was entered
into with his brother Madan Prasad Gupta on 06.05.2005 after
taking 2 lakhs as earnest money out of total consideration
money of Rs. 9 lakhs and an agreement for sale was executed
on 06.05.2005. It was asserted that the plaintiff had been
offering higher amount and had been forcing the defendant no.
1 to revoke the earlier agreement dated 06.05.2005 and
defendant no.1 mistakenly entered into registered agreement of
sale dated 06.09.2005 without intimating Madan Prasad Gupta
and without revoking the agreement of sale dated 06.05.2005
and in such circumstances, the brother of the defendant no.1
sent a legal notice dated 10.01.2006 asking the defendant no.1
not to sell the property. The defendant no. 1 informed the
plaintiff and intimated him for revocation of agreement of sale
dated 06.09.2005 and offered and requested the plaintiff to
refund the earnest money and the defendant no. 1 ultimately
10
registered a power of attorney dated 24.05.2006 and appointed
Suraj Kumar Gupta to sell and transfer the property to Rubi
Devi. It was asserted that at the time of execution of power of
attorney, the son of defendant no.1, namely, Sandeep Kumar
Gupta who also had share with the defendant no. 1 in the suit
property, started quarrelling and the matter was finalized by
intervention of well-wishers and it was agreed that Sandeep
Kumar Gupta will receive an amount of Rs. 5 lakhs as per
consideration amount of his share of property. Ultimately,
Sandeep Kumar Gupta received Rs. 5 lakhs from Rubi Devi
and Madan Prasad Gupta on account of his share and he
executed, signed and acknowledged the receipt and waived his
right, title and interest in favour of the purchaser. It was
asserted that the agreement of sale dated 06.09.2005 was
illegal, bad and never enforceable and also under the Specific
Relief Act and the defendant no. 1 was only liable to refund
the earnest money to the plaintiff.
Impleadment of Defendant Nos. 2 to 5 in the suit
15. On petition dated 11.04.2007 filed by the plaintiff under Order 1
Rule 10(2) of Code of Civil Procedure and the other side showing no
objection to the proposed amendment, Defendant Nos. 2 to 5 were added
in the suit vide order dated 08.05.2007 passed by the learned trial Court.
Defendant no.5 was the son of the defendant no.1 and claimed that the suit
property was the joint family property.
Case of defendant nos. 2 to 5
16. The defendant nos. 2 to 5 appeared and contested the suit by filing
their written statement on the ground that the cause of action referred in
para 27 of the plaint are false and imaginary. It was alleged that the suit
was barred under the provision of Specific Relief Act, barred by limitation
and the suit property was part and parcel of jointly possessed property
owned by all the co-sharers who were residing as per their convenience
11
and consequently, the defendant no. 1 was never entitled to execute any
agreement for sale or to execute any sale deed in favour of any stranger
without the consent of the other co-sharers. It was their further case that
other co-sharers have their preferential right, title and interest to purchase
the share of the other co-sharer in a dwelling house. It was asserted that
the alleged agreement for sale of the plaintiff was not enforceable and was
a void contract. It was asserted that the plaintiff was not entitled to get any
equitable relief. All the allegations have also been denied by the defendant
no. 2 to 5 as were denied by the defendant no.1 in his written statement. It
was asserted that the agreement for sale between the plaintiff and the
original defendant no.1 was void ab initio and inoperative.
17. On the basis of the pleadings of the parties, following issues were
framed by the learned trial court: –
“I. Whether the suit is maintainable in its present form?
II. Whether the plaintiff has got cause of action for the
instant suit?
III. Whether the plaintiff suit is barred by law of limitation?
IV. Whether plaintiff is entitled for decree for Specific
Performance of Contract regarding suit land as
mentioned in the plaint?
V. Whether instant suit is barred under the provision of
Partition Act?
VI. Whether the agreement for sale dt. 06.09.2005 executed
by the defendant in favour of the plaintiff is valid and
genuine?
VII. Whether plaintiff is entitled for any other relief or
reliefs?
VIII. Was/is the plaintiff ready and willing to perform its part
of contract?”
18. Findings of the learned trial Court are as under:
“5. ISSUE NO. VI- Whether the agreement for sale dt.
06.09.2005 executed by the defendant in favour of the
plaintiff is valid and genuine?
For the sake of convenience this issue is taken first for
determination. On perusal of the plaint, it transpires that12
land and house standing over holding no. 539 ward no. 1
(old) 2 (new) plot no. 48 area measuring 7 katta (11½
Decimal) by the father of defendant no. 1 and in the name
of mother of defendant no. 1 Smt. Bhibha Devi who died
leaving behind 7 sons namely Ratan Pd. Gupta, Madan Pd.
Gupta, Umesh Pd. Gupta, Prakash Pd. Gupta, Suresh Pd.
Gupta, Sunil Pd. Gupta and Kishor Pd. Gupta (defendant).
The plaintiff further stated that the aforesaid 7 brothers
amicably partitioned the aforesaid land and building along
with land house and properties particularly at Mohalla at
Dhariyadih and said partitioned got reduced into writing by
virtue of a deed for family arrangement partitioned dt.
17.02.1995 duly signed by all the brother and the suit
property failed into exclusive share takhta of Kishor Pd.
Gupta whose name was duly mutated in Giridih
municipality and defendant no. 1 Kishor Pd. Gupta is the
absolute owner of the suit property having right title and
interest to sale or transfer the same. He through his father
Rabindra Pd. Gupta is running of glossary shop in a
portion of suit premises measuring 4’x 23′ along with that
of the portion of the belonging to the Umesh pd. Gupta
measuring 8’x 23′ since 1982 was a tenant under the father
of defendant no.1 and thereafter under the defendants and
rents were being paid to them. In September 2005 the
defendant was a need of heavy amount for the purpose of
his business and he approach and offer the plaintiff to sale
the suit premises in consideration of Rs. 14 lac 11 thousand
and accordingly, entered into registered agreement dt.
06.09.2005 and plaintiff paid Rs. 2 lac to the defendant no.
1 Kishor Pd. Gupta as earnest money on the same date of
Rs. 6 lac on 17.10.2005 and on 18.10.05 and it was agreed
that the plaintiff will get the sale deed registered within 8
months from 06.09.2005 after payment of balance of Rs. 6
lac 11 thousand. The plaintiff through his father Rabindra
Pd. Gupta who is tenant in suit premises since long under
the defendant no.1 and one of the co-sharer Umesh pd.
Gupta. The suit property in terms of partitioned dt.
17.02.1995 got allotted to the defendant no. 1 and plaintiff
entered into said concluded contract dt. 06.09.2005 (Ext 1)
and paid Rs. 2 lac to vendor (Defendant no. 1). Again,
plaintiff paid Rs. 6 lac by way of cash and bank draft on
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17.10.2005 and 18.10.05 duly accepted by the defendant no.
1 (ext. 2), vendor and duly signed by executed receipt by
defendant no. 1 Kishor Pd. Gupta his wife Sibani Devi and
son of defendant no. 1 Sandeep Kr. Gupta and defendant
no. 5 in present suit coupled with the full brother of the
defendant no. 1 namely Umesh Pd. Gupta has also
endorsed on the back of the aforesaid receipt that such
payment has been made by the plaintiff to defendant no. 1.
This amount paid to the plaintiff towards performance of
own part on contract all alone plaintiff performed its part of
contract but defendant did not deliver remaining portion of
ground floor vacated by the another tenant Vijay
Persuramka. Earlier he had given possession of first floor
which got brought within brick built wall at the roof by the
plaintiff and plaint all along performed its part of contract.
But on going through the Ext-1, I find that it has not been
signed by the all defendant. PW I Rabindra Pd Gupta have
stated in para 16 of his cross examination that the suit
property is a part of brick built house and that was of Bibha
Devi. She died leaving behind her 7 sons and one daughter.
Four brother of her family are living in the same house and
in para 17 he has stated that he had seen the paper of
partition but the partitioned has not been proved by the
plaintiff. PW3 Ritesh Kr. Gupta who is the plaintiff of this
case he stated in para 33 of his cross examination that the
suit property is the property of Bibha Devi and after her
death herself came in possession over the suit property.
From the statement of this witness, it is clear that the suit
property is a joint property of defendants. From the oral
evidence and the exhibits produced by the defendant it is
clear that Kishor Pd. Gupta earlier executed an agreement
for sale in favour of the brother Madan Pd. Gupta and
received Rs. 2 lac and subsequently on strength of power of
attorney dt. 24.05.2006 the attorney holder executed a
registered sale deed dt. 29.05.2006 in favour of Rubi Devi
defendant no. 2. The defendant no. 1 Kishor Pd. Gupta
mistakenly entered into registered agreement for sale deed
dt. 06.09.05 without intimating Madan pd. Gupta and
without revoking/canceling the agreement for sale dt.
06.05.05, the brother of defendant no. 1 send a lawyer
notice dt. 10.01.2006 (Ext 1) to defendant no. 1 and plaintiff
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advised not to sale the share of the defendant to any
stranger. Defendant no. 1 informed the plaintiff by letter dt.
22.02.06 (Ext 1/1) and intimating him for the revocation of
agreement for sale deed dt. 06.09.2005 and offer and
requested plaintiff to refund back earnest money paid by
him. Considering the oral statement and the documentary
evidence of the plaintiff I find that the suit property is a
joint property of defendants no. 1 to 4. So, the agreement
for sale dt. 05.09.2005(Ext l) is not valid and void and he
(Defendant no. 1) was not entitled to make any agreement
for sale. The learned counsel for the defendant has referred
the rulings 2002(1) JLIR page 565, 2009(4) JLJR Sc 201,
2004(3) JLJR 205 and 2009(1) JLLJR 302, it has been held
by the Hon’ble Court that joint share cannot be alienated
without the consent of other coparcener. Accordingly, this
issue is decided against the plaintiff.”
ISSUE No. I, II, III, IV and VIII were decided against the
plaintiff on the ground that the agreement for sale dated 06.09.2005
(Exhibit 1) was not valid as the suit property is a coparcenary
property. It was held that the plaintiff had no cause of action and
was not entitled for a decree for specific performance of contract of
sale against the defendant no.1.
ISSUE NO. V was also decided against the plaintiff by observing
that from the evidence of PW 1 and 3 the court found that the suit
property was a joint property and partition was not proved by the
plaintiff nor any registered paper of partition was produced by the
plaintiff and from the oral evidence of the defendants and the
documents produced by them, it was clear that the suit property was
a coparcenary property and hence the instant suit was barred under
the provisions of the Partition Act. ISSUE NO. VII was not pressed
by the plaintiff. The suit was held to be not maintainable in the
present form and was dismissed.
19. The learned first appellate Court considered the issue nos. 4, 5 and
6 which were framed by the trial court and decided them together.
15
20. The learned first appellate Court considered the materials on record,
both oral and documentary, and held that there was a family partition by
metes and bounds and the family partition document dated 17.02.1995
was duly signed by all the 7 brothers and each co-sharer assumed their
own part and have been paying rent for their respective shares ; the suit
property was the exclusive property of the defendant no.1; the registered
agreement dated 06.09.2005 (Exhibit-1) between the plaintiff and the
defendant no.1 was binding ; Exhibit B dated 06.05.2005 (the agreement
of sale relied upon by the defendants ) and the Exhibit C dated 29.05.2006
(registered sale deed executed in favour of the defendant no.2 by the
defendant no.1 ) were contradictory and inconsistent and Exhibit B was
inadmissible in evidence and exhibit-B was an afterthought to by-pass
the binding registered agreement dated 06.09.2005 (exhibit-1) ; the suit
was not barred by limitation and there was readiness and willingness on
the part of the plaintiff to perform his part of the contract. After recording
the aforesaid findings, the learned first appellate Court allowed the appeal
and decreed the suit by directing the legal heirs of defendant no.1 to
execute the sale deed in favour of the plaintiff. The findings of the learned
first appellate Court relevant for the purposes of this case considering the
substantial questions of law are as under:-
“16. As such, from perusal of the evidence i.e. oral as well as
documentary evidence, it transpires that in fact, the suit
property had been partitioned by the co-sharers by an amicable
family settlement between the coparceners of the family on
17/02/1995 duly signed by all the coparceners. Further each
co-sharer has assumed its own part and have been paying rent
on their respective shares and partition stands admitted. There
was no such understanding between the co-sharers of the suit
property that they shall have right of preemption if any one of
them ever decides to sell his part of property. Further a valid
agreement for sale has been entered into between the
appellant/plaintiff and respondent/ defendant no. 1 Kishore
16
Prasad Gupta by which the respondent/defendant no.1 was
under obligation to transfer its share in the property to the
appellant/plaintiff in which he was running the Grocery Shop
along with his father. Although the said property was an
ancestral property of the respondents/defendants, but the same
appears to be duly partitioned before the agreement for sale
was entered between the appellant and defendant no.1 Kishore
Prasad Gupta. Hence, the provisions of part of act would apply
in the instant case as admittedly the suit property was not
wholly a dwelling house, but also a commercial property. It is
contended that the learned court below has erroneously
decided the issue No.6 and held that the agreement for sale
dated 06/09/2005 entered in between the plaintiff/appellant and
defendant no. 1/respondent, was not valid and the joint-share
in a property cannot be alienated and is without the consent of
other co-parceners in spite of the fact that the said property is
no more a joint-property and has been partitioned by way of an
amicable family settlement by metes and bounds. Further a co-
sharer is entitled to sell and transfer the property to the extent
of his share even in absence of partition. It is required to be
examined the genuineness of the agreement for sale entered
between Kishore Prasad Gupta and his brother Madan Prasad
Gupta purportedly before the said Agreement.
So far the partition and exclusive possession are
concerned, which admitted vide Ext-X & Ext-X/1, Ext-B, Ext-C
& Ext-H. Hence, the partition dated 17/02/1995 is binding and
the law is very specific that any Batwara or arrangement in the
family, is proof of partition and any transaction based on such
partition, is proof of partition by metes and bounds and nobody
can challenge the same since it is barred by principles of
estoppel and acquiescence.
Amendment of Section 6 of Hindu Succession Act, 1956, is
not applicable since …….
17
So far the registered deed of Agreement dated 06/09/2005 is
concerned, that is binding upon any unregistered paper or
persons. Ext-1 shows the consideration amount of
Rs.14,11,000/- out of which Rs.2,00,000/- have been paid and
on 17/10/2005 another Rs.6,00,000/- have been paid through
two Bank Drafts in compliance of the agreement and only
6,11,000/- remained due. Ext-2 contains signature of Kishore
Prasad Gupta, his wife Shivani Devi and son Sandeep Prasad
Gupta. So, the entire family of Kishore Prasad Gupta accepted
the terms and conditions of the agreement and abide
themselves from the binding effect of the agreement, even the
other brother Umesh Prasad Gupta, was the witness in the said
Ext-2 and put his signature, i.e. Ext-3/c. ……..”
“18. On the basis of the evidence i.e. oral as well as
documentary evidence as discussed above, it is apparently clear
that the alleged Agreement for Sale dated 06/09/2005 (Ext-1)
executed by the defendant Kishore Prasad Gupta in favour of
plaintiff/appellant Ritesh Kumar Gupta in respect of the suit
property as mentioned in the Schedule of the plaint, is valid
and genuine document. But the learned court below did not
consider the aforesaid fact, and recorded the findings against
the materials as available on the record. The plaintiff/appellant
has succeeded in proving his case on the basis of evidence and
documents as available on the record. As such, the learned
court below has erroneously decided the main issue i.e. issue
no.6 as well as Issue Nos. 4 & 5 against the appellant/plaintiff.
19. So far question of the limitation …………………………..
20. Further, so far the question of Readiness and Willingness,
are concerned, ……………………
21. In the aforesaid facts and circumstances, since the main
Issue i. e. Issue No.6 as well as Issue Nos.4 & 5, which have
erroneously been decided against the appellant/plaintiff
18
without considering the documents and other materials
available on the record, hence, the instant suit filed on behalf
of the appellant/plaintiff is also maintainable in its present
form and plaintiff has valid cause of action for the suit.
Accordingly, the impugned judgment dated 21/01/2014 and its
decree signed on 03/02/2014 by the court of the Civil Judge
(Senior Division)-III, Giridih in Title Suit No. 36 of 2006, is
hereby set aside and this appeal is allowed. Respondents no. 1A
to 1D are directed to execute the registered deed of sale with
respect to the suit property in favour of the appellant/plaintiff
on payment of balance consideration amount within a period of
two months from the date of judgement. In case of failure of
the respondents to execute the required registered deed of sale
the plaintiff/appellant is at liberty to get the execution of
required registered deed of sale of the suit property against
respondent nos. 1A to 1D through the process of law. Both
parties shall bear their own cost.”
21. The material list of dates and the sequence of events are as follows:-
Admitted fact. The suit property was recorded in the
name of mother of the defendant no.1
who died leaving behind 7 sons
including defendant nos.1 and 4
17.02.1995 There was a family partition which was
As per the plaintiff reduced into writing and duly signed by
and disputed by the all the seven brothers followed by
defendants. separate possession and the suit
property fell into the share of the
defendant no.1
06.05.2005 Unregistered Agreement for Sale
Exhibit- B Executed between Defendant No. 1
As per the defendants (Kishore Prasad Gupta) & Defendant
and Disputed by the No. 4 (Madan Prasad Gupta) for Rs.
plaintiff 9,00,000/-. (Exhibit – B)
06.09.2005 Another Registered Agreement for Sale
Exhibit-1 executed by Defendant no. 1 (Kishore
19
Prasad Gupta) in favour of Plaintiff for
Rs. 14,11,000/- and payment of Rs.
2,00,000/- received as advance.
02.03.2006 Paper publication by Plaintiff.
Exhibit-4
29.05.2006 Defendant no. 1 (Kishore Prasad
Exhibit- C Gupta) executed the Sale Deed in
favour of Defendant No. 2 (Rubi Devi)
for Rs. 4,00,000/- through Power of
Attorney holder Defendant No. 3.
(Exhibit – C)
07.06.2006 Plaintiff Ritesh Kumar Gupta filed a
(Suit Filed) suit for Specific Performance of
Contract against Defendant no. 1
(Kishore Prasad Gupta) wherein no
prayer was made to cancel the sale-
deed dated 29.05.2006. (Exhibit – C)
22. Admittedly, neither there was any prayer in the plaint for
cancellation of sale deed dated 29.05.2006 executed by Kishore Prasad
Gupta [original Defendant No.1] in favour of Rubi Devi [Defendant No.
2] nor there was any prayer to direct the defendant no.2 to join in the
execution of sale deed in favour of the plaintiff nor any such direction was
issued by the learned first appellate Court. This Court finds that it was
never the case of the defendant no.2 that she had purchased the property
without notice of the registered agreement of sale entered into between the
plaintiff and the defendant no.1. The only case of the defendant no.2 was
that the suit property was the joint family property and defendant no.1
could not have executed the agreement of sale in favour of the plaintiff
and the defendant no.4 being the co-sharer had the preferential right to
purchase the property who purchased the property in the name of the
defendant no.2 by registered sale deed dated 29.05.2006 (exhibit-C) prior
to filing of the suit.
Findings on 2nd substantial question of law
23. The learned trial Court held that the property was a joint property of
defendant nos. 1 to 4 and consequently, held that the agreement of sale20
dated 06.09.2005 (Exhibit-1) executed by defendant no. 1 in favour of the
plaintiff was not valid and was void as the defendant no. 1 was not
entitled to make any agreement of sale. The learned trial Court, inter alia,
relied upon the judgment passed by this Court in the case of “Bharat
Singh Vs. Aklu Hazam” reported in 2002 (1) JLJR 565 which has been
specifically referred to in the 2nd substantial question of law.
24. The learned first appellate Court has recorded a finding in
paragraph 5 of its judgment that the suit property was purchased by the
father of the defendant no. 1 in the name of the mother of defendant no.1
who died leaving behind 7 sons and it was the case of the plaintiff that the
7 brothers amicably partitioned the suit property and also other land,
house and properties which got reduced into writing by virtue of a deed of
family arrangement dated 17.02.1995 duly signed by all the brothers and
the suit property fell in exclusive share of defendant no. 1 Kishore Prasad
Gupta who got his name mutated in the municipality and had been the
absolute owner of the suit property having right, title and interest to sell or
transfer the same.
25. The second substantial question of law has been framed by
observing that the suit property was a joint family property of the
defendants on the date of agreement, that is, 06.09.2005 although there is
specific finding recorded by the learned first appellate court after
scrutinizing the materials on record that there has been family partition
amongst the seven brothers of the defendant no.1 prior to registered
agreement of sale dated 06.09.2005 (exhibit-1) and that the co-sharers
were separated and that the suit property was the exclusive property of the
defendant no.1. It is important to note that the defendant no. 5 (respondent
no.7), who is the son of original defendant no.1 and had also claimed that
the suit property was joint family property and claimed to have a share in
the property with his father, is not the appellant before this court and is
accordingly not aggrieved by the appellant court’s judgement and decree.
21
Further, the respondent nos. 2 to 7 have chosen not to appear before this
court.
26. The substantial question of law as framed does not challenge the
aforesaid findings of the learned first appellate Court and no other
substantial question of law has been framed challenging the said findings.
Otherwise also, the aforesaid findings of the learned first appellate Court
are based on due scrutiny of materials on record and the perusal of the
discussions reveals that the previous family partition stood almost
admitted even by the witnesses produced by the defendants.
27. In view of the findings recorded by the learned first appellate Court
that there was previous partition amongst the 7 brothers of the defendant
no.1 by metes and bounds on 17.02.1995, there is no doubt that the suit
property was not a joint family property on 06.09.2005. This Court is of
the view that the learned first appellate Court having recorded a finding
that there was previous family partition has committed no perversity and
the learned appellate Court has rightly held that the agreement of sale
dated 06.09.2005 [Exhibit-1] which was entered into by defendant no. 1
with the plaintiff is a valid document. The ratio of the judgment passed
by this Court in the case of “Bharat Singh Vs. Aklu Hazam” (Supra)
does not help the appellants in any manner. In the said judgement it has
been held that once it is established that a property is a joint family
property then one of coparceners alone has no right to execute the
agreement of sale for such property but in the present case there is a
finding of previous partition and also a finding that the suit property was
the exclusive property of the original defendant no.1. As a result of the
aforesaid findings, the 2nd substantial question of law is answered in
favour of the plaintiff and against the defendants. It is held that the suit
property being exclusive property of the original defendant no.1 as held
and recorded by the learned first appellate court, the first appellate Court
did not commit any perversity while holding that the defendant no. 1
alone was competent to enter into an agreement for sale with the plaintiff
22
vide Exhibit 1 on 06.09.2005 and the ratio of the judgment of the co-
ordinate Bench of this court in the case of “Bharat Singh Vs. Aklu
Hazam” reported in 2002 1 JLJR 565 does not apply to the facts of this
case.
Findings on 1st substantial question of law
28. After considering the provisions of Specific Relief Act, 1877,
Transfer Of Property Act, 1882 and the Indian Trusts Act, 1882, the
Hon’ble Supreme Court in the judgment reported in (1953) 2 SCC 509
(Lala Durga Prasad & Others vs. Lala Deep Chand & Others) has laid
down the law as to how a decree of specific performance of contract has
to be prepared in case of transfer which is subsequent to the agreement
which is sought to be enforced through specific performance of contract
and when such subsequent transferee has no notice about the earlier
agreement of sale. It has been held by the Hon’ble Supreme Court that in
aforesaid cases there is no need to challenge the subsequent sale-deed and
the court can direct such subsequent purchaser to join in with the
transferor for the execution of sale-deed in favour of the plaintiff in order
to enforce the specific performance of contract. Paragraph 37 to 42 of the
aforesaid judgement is quoted as under: –
“37. The practice of the courts in India has not been uniform and
three distinct lines of thought emerge. (We are of course confining our
attention to a purchaser’s suit for specific performance.) According to
one point of view, the proper form of decree is to declare the
subsequent purchase void as against the plaintiff and direct
conveyance by the vendor alone. A second considers that both vendor
and vendee should join, while a third would limit execution of the
conveyance to the subsequent purchaser alone.
38. The only statutory provisions which bear on this point are Section
91 of the Trusts Act, 1882, Section 3 of the Specific Relief Act, 1877
Illustration (g), and Section 27 of that Act, and Section 40 of the
Transfer of Property Act.
39. Section 91 of the Trusts Act does not make the subsequent
purchaser with notice a trustee properly so-called but saddles him
with an obligation in the nature of a trust (because of Section 80) and23
directs that he must hold the property for the benefit of the prior
“contractor”, if we may so describe the plaintiff,
“to the extent necessary to give effect to the contract”.
Section 3 Illustration (g) of the Specific Relief Act makes him a trustee
for the plaintiff but only for the purposes of that Act. Section 40 of the
Transfer of Property Act enacts that this obligation can be enforced
against a subsequent transferee with notice but not against one who
holds for consideration and without notice. Section 27 of the Specific
Relief Act does not carry the matter any further. All it says is that
specific performance may be enforced against:
“27. (a) either party thereto;
(b) any other person claiming under him by a title 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;”
None of this helps because none of these provisions directly relate to
the form of the decree. It will therefore be necessary to analyse each
form in the light of other provisions of law.
40. First, we reach the position that the title to the property has
validly passed from the vendor and resides in the subsequent
transferee. The sale to him is not void but only voidable at the option
of the earlier “contractor”. As the title no longer rests in the vendor it
would be illogical from a conveyancing point of view to compel him to
convey to the plaintiff unless steps are taken to revest the title in him
either by cancellation of the subsequent sale or by reconveyance from
the subsequent purchaser to him. We do not know of any case in which
a reconveyance to the vendor was ordered but Sulaiman, C.J. adopted
the other course in Kali Charan Singh v. Janak Deo Singh. He
directed cancellation of the subsequent sale and conveyance to the
plaintiff by the vendor in accordance with the contract of sale of
which the plaintiff sought specific performance. But though this
sounds logical the objection to it is that it might bring in its train
complications between the vendor and the subsequent purchaser.
There may be covenants in the deed between them which it would be
inequitable to disturb by cancellation of their deed. Accordingly, we
do not think that is a desirable solution.
41. We are not enamoured of the next alternative either, namely,
conveyance by the subsequent purchaser alone to the plaintiff. It is
true that would have the effect of vesting the title to the property in the
plaintiff but it might be inequitable to compel the subsequent
transferee to enter into terms and covenants in the vendor’s
24
agreement with the plaintiff to which he would never have agreed had
he been a free agent; and if the original contract is varied by altering
or omitting such terms the court will be remaking the contract, a thing
it has no power to do; and in any case it will no longer be specifically
enforcing the original contract but another and different one.
42. In our opinion, the proper form of decree is to direct specific
performance of the contract between the vendor and the plaintiff and
direct the subsequent transferee to join in the conveyance so as to
pass on the title which resides in him to the plaintiff. He does not join
in any special covenants made between the plaintiff and his vendor;
all he does is to pass on his title to the plaintiff. This was the course
followed by the Calcutta High Court in Kafiladdin v. Samiraddin and
appears to be the English practice. See Fry on Specific Performance,
6th Edn., p. 90, Para 207; also Potter v. Sanders. We direct
accordingly.”
29. In the judgment passed by the Hon’ble Supreme Court reported in
(2018) 11 SCC 761 (B. Vijaya Bharathi vs. P. Savitri & Ors.), the
Hon’ble Supreme Court considered Section 16(c) and 19(b) of the
Specific Relief Act, 1963 and held in paragraph 17 that when there is
already a conveyance of property, the same would stand in the way of a
decree of specific performance of contract unless the conveyance is set-
aside and therefore unless the conveyance is set-aside, no decree for
specific performance could possibly follow. The aforesaid judgment
reported in (2018) 11 SCC 761 (supra) was subject matter of
consideration in the recent judgment of the Hon’ble Supreme Court
reported in (2024) 8 SCC 83 [Maharaj Singh & Others vs. Karan Singh
(dead) through legal representatives & Others] wherein the aforesaid
view taken by the Hon’ble Supreme Court in (2018) 11 SCC 761 (supra)
has been held to be not a binding precedent by observing that the decision
of Larger Bench of the Hon’ble Supreme court reported in (1953) 2 SCC
509 (Supra) was not placed while deciding the judgment reported in
(2018) 11 SCC 761 (supra). It has been held in the judgment reported in
(2024) 8 SCC 83 (supra) that there was no requirement to make a prayer
in the plaint for cancellation or setting aside the subsequent sale deed to
enforce specific performance of contract. The Hon’ble Supreme Court
25
referred to Section 19 clause (a) to (c) of the Specific Relief Act, 1963 and
held that the defendants who are claiming under the sale-deeds executed
after execution of the suit agreement can be subjected to a decree of
specific performance as the suit agreement can be enforced specifically
against such defendants unless they are bonafide purchasers without the
notice of the original contract. It has also been held that when, in a given
case, the defendants, who are subsequent purchasers failed to prove that
they entered into the sale-deed in good faith and without notice of the suit
agreement, in view of Section 19(b) of the Specific Relief Act, 1963, a
decree for specific performance can be passed against such defendants and
the subsequent purchasers can be directed to execute the sale-deed along
with the original vendor and there is no necessity to pray for cancellation
of the subsequent sale deed.
30. Thus, the law has now been settled that in a suit for specific
performance of contract when there is a sale of the property after the suit
agreement and such purchaser has bought the property bonafidely in good
faith and without notice of the suit agreement, there is no need to
challenge the sale-deed and the court can direct the subsequent purchaser
to join in for the execution of sale-deed in favour of the plaintiff.
31. The case of the defendants was that the sale-deed dated 29.05.2006
(exhibit-C) was executed as a result of the agreement of sale dated
06.05.2005 (exhibit-B) and therefore the sale-deed was relatable to earlier
agreement of sale dated 06.05.2005 (exhibit-B) and the suit agreement
dated 06.09.2005 (exhibit-1) was subsequent to their agreement. In the
context of the earlier agreement dated 06.05.2005 (exhibit-B) relied upon
by the defendants, the learned first appellate Court has recorded a clear
finding that the agreement dated 06.05.2005 (exhibit-B) was an
afterthought to bypass the shackles of binding effect of the registered
agreement of sale dated 06.09.2005 (exhibit-1). Further finding was also
recorded that there was inconsistency and contradiction between the
earlier agreement of sale dated 06.05.2005 (exhibit-B) and the sale-deed
26
dated 29.05.2006 (exhibit-C), interalia, with respect to the payment of
consideration amount. On the face of the aforesaid findings recorded by
the learned first appellate Court, it cannot be said that the sale-deed dated
29.05.2006 (exhibit-C) was pursuant to the earlier agreement of sale dated
06.05.2005 (exhibit-B) and no reliance can be placed by the defendants on
the earlier agreement of sale dated 06.05.2005 (exhibit-B).
32. Consequently, it has to be examined as to whether the sale-deed
dated 29.05.2006 (exhibit-C) executed by the defendant no.1 in favour of
the defendant no.2 was bonafide, in good faith and without notice to the
suit agreement dated 06.09.2005 (exhibit-1). This court finds that it was
never the case of the defendant Nos. 2 to 5 that they had no knowledge or
notice about the registered agreement of sale dated 06.09.2005 (exhibit-1)
which is the suit agreement. The fact also remains that much prior to
execution of sale dated 29.05.2006 (exhibit- C) there was a paper
publication dated 02.03.2006 (exhibit-4) at the instance of the plaintiff
informing the public at large that the defendant no.1 has entered into a
registered agreement of sale dated 06.09.2005 (exhibit-1) with the
plaintiff with respect to the suit property. Thus, the defendant no.2 to 5
cannot be said to be bonafide purchaser, in good faith and without notice
to the suit agreement dated 06.09.2005 (exhibit-1).
33. In view of the aforesaid findings of the learned first appellate Court,
the defendants cannot take shelter of the agreement of sale dated
06.09.2005 (exhibit-B) to justify execution of the sale-deed dated
29.05.2006 by the defendant No. 1 in favour of defendant No. 2. It has
neither been pleaded nor proved by the defendant nos.2 to 5 that the sale-
deed dated 29.05.2006 (exhibit-C) was executed without notice with
respect to the registered agreement of sale dated 06.09.2005 (exhibit-1).
This court is of the considered view that there was no need for the plaintiff
to seek cancellation of sale-deed dated 29.05.2006 (exhibit-C) when seen
in the light of the aforesaid judgements passed by the Hon’ble Supreme
27
Court reported in (2024) 8 SCC 83 (Maharaj Singh & Others vs. Karan
Singh (dead) through legal representatives & Others).
34. Accordingly, the 1st substantial question of law is hereby answered
against the appellants and in favour of the respondent no.1(plaintiff) and it
is held that the learned first appellate Court committed no perversity while
decreeing the suit of the plaintiff even though the plaintiff did not pray for
cancellation of the aforesaid sale-deed dated 29.05.2006 (exhibit-C).
35. It is important to place on record that the execution case arising out
of the appellate court judgement and decree being Execution Case No.
26/2023 has been closed vide order dated 29.11.2024. Apparently, the sale
deed has already been executed in favour of the plaintiff through the
process of court and the sale deed No. 2024/GIR/4851/BKI/4518 dated
29.11.2024 running in 22 pages was placed before the executing court
from the registry office and the execution proceeding has been closed
after full satisfaction of the decree. The petition seeking stay of execution
proceedings was filed before this court vide affidavit dated 16.12.2024
being I.A. No. 13681 of 2024 and by this time the execution proceedings
was already closed.
36. Both the substantial questions of law having been answered against
the appellants and in favour of the respondent no.1 – plaintiff, this second
appeal is dismissed.
37. Pending interlocutory application, if any, is closed.
38. Let the records received from the learned Court be sent back to the
learned Court concerned forthwith.
(Anubha Rawat Choudhary, J.)
Pankaj/AFR
28
