Kiran vs Vivek and Others

S.B. Shukre, J.—This judgment shall dispose of two appeals i.e. First Appeal No. 1436/2009 and First Appeal No. 1437/2009 as the subject matter of these two appeals is the same and the main contesting parties i.e. Appellant and respondent No. 1 are also the same.

The subject matter of the appeals is Plot No. 294, Gandhi Nagar, Nagpur admeasuring about 4620 sq.ft. and is called hereinafter the suit property.

The suit property is owned by Nagpur Improvement Trust, which allotted it initially to Gandhi Nagar, Co-operative Housing Society, vide lease deed dated 29.9.1950. The suit property, thereafter was allotted to Ramdas Baliram Mukadam-father of the respondent No. 1 Vivek on lease hold basis vide transfer deed dated 15.10.1960 by the said society. Ramdas then, with the permission of the Nagpur Improvement Trust constructed a house on the suit property.

As the house on the suit property became old Ramdas felt that it should be substituted by a new construction. Ramdas was not possessed of sufficient means to undertake the construction of a new structure.

The facts as alleged by the contesting parties in both these appeals up to the stage of Ramdas desiring to have his house substituted by a new construction and his inability to undertake the construction by himself due to lack of funds are similar. They take different turns from this point onwards in both these appeals.

The First Appeal No. 1437 of 2009 has been preferred against the judgment and decree dated 30.9.2009 passed by the 8th Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 280/2002.

The First Appeal No. 1436 of 2009 has been filed against the judgment and decree dated 30.9.2009 passed in Special Civil Suit No. 368/2004 by 8th Joint Civil Judge, Senior Division, Nagpur. The Special Civil Suit No. 280/2002 was filed by the appellant against Vivek (respondent No. 1) Smt. Kamal (respondent No. 2), Smt. Vidya (Respondent No. 3), Smt. Vibha (Respondent No. 4) and Ravi (Respondent No. 5). The respondent Nos. 2 to 4 i.e. Smt. Kamal and Smt. Vidya and Smt. Vibha are respectively mother and sisters of the respondent No. 1. The respondent No. 5-Ravi is a relative of respondent No. 4-Smt. Vibha.

The other suit, Special Civil Suit No. 368/2004 was filed by the respondent No. 1-Vivek against the appellant, in both these appeals, Smt. Kiran.

While Special Civil Suit No. 280/2002 was for declaration, specific performance of contract and perpetual injunction, the Special Civil Suit No. 368/2004 was for eviction, possession, damages and mesne profits. The pleadings of Smt. Kiran in Special Civil Suit No. 280/2002 constitute her defence in Special Civil Suit No. 368/2004 and pleadings of Vivek in Special Civil Suit No. 368/2004 constitute his defence in Special Civil Suit No. 280/2002. Therefore, it would be convenient to consider the pleadings of the contesting parties i.e. Smt. Kiran-appellant in both these appeals and Vivek the first respondent in both the appeals, as they appeared in Special Civil Suit No. 280/2002. The respondent Nos. 2 to 5 were not parties to Special Civil Suit No. 368/2004 and, therefore, their pleadings would be considered separately. For the sake of convenience, the parties to both the appeals would be referred to as appellant and respondent Nos. 1 to 5, as they have been arrayed as parties in First Appeal No. 1437/2009.

As stated earlier, Ramdas is the original owner of the suit property. He was the husband of the respondent No. 2 and father of respondent Nos. 1,3 and 4. He expired on 27.2.2000. As deceased Ramdas intended to have a new construction made on the suit property, he entered into an agreement of sale with respect to the suit property with the respondent No. 5-Ravi on 11.9.1992. This agreement was substituted by another agreement of sale and development dated 25.9.1992 executed between the deceased Ramdas and respondent No. 5. On 25.9.1992, deceased Ramdas also executed a registered irrevocable power-of-attorney in favour of respondent No. 5 in terms of agreement dated 25.9.1992. The suit property was self-acquired property of deceased Ramdas and he had all the rights to enter into the said agreement.

However, the respondent No. 1 started to claim his share in the suit property falsely claiming that it was an ancestral property. He had even filed a suit being Regular Civil Suit No. 713/1989 claiming that the suit property was purchased by the deceased Ramdas out of the funds of joint Hindu family. The said suit was, however, dismissed for want of prosecution. It is alleged that the respondent No. 1 even thereafter continued to harass his father by claiming share in the suit property. In order to buy peace and avoid any dispute, deceased Ramdas requested respondent No. 5 to pay a sum of Rs. 1,65,000/- to the respondent No. 1 out of total sale consideration of Rs. 5,00,000/-, even though he had no share in the property. A sum of Rs. 1,00,000/- was paid to the respondent No. 1 by demand draft and remaining amount of Rs. 65,000/- was paid in cash. The respondent No. 1 passed a receipt acknowledging the said payment.

The respondent No. 1 also vacated the suit property and executed a relinquishment deed in respect of the suit property in favour of his father. This deed acknowledges that the suit property is the self-acquired property of deceased Ramdas. This deed was executed only by way of an abundant precaution and to record a fact that the dispute between the father and the son was amicably resolved.

The respondent No. 5 was placed in possession of the suit property on the same day of execution of the agreement on 25.9.1992. He also accepted booking amounts from the prospective purchasers of proposed tenements in the scheme of construction of tenements on the suit property.

The respondent No. 5 was unable to complete the scheme and, therefore, he, with deceased Ramdas consenting entered into an agreement of sale on 12.8.1994 in respect of the suit property in favour of the appellant for a valuable consideration of Rs. 9,02,000/-. This agreement also bears signature of respondent No. 2-mother of the respondent No. 1. Deceased Ramdas and his wife-respondent No. 2 also executed a separate consent letter dated 12.8.1994 acknowledging the fact that they received entire consideration for the sale of the suit property from the respondent No. 5 and, therefore, consent was being given by them to the appellant to take over the entire scheme from the respondent No. 5. As per this agreement, the appellant also refunded booking amounts to the prospective purchasers, who had booked apartments in the scheme and later on cancelled their bookings. The appellant paid entire amount of consideration to the respondent No. 5 as per said agreement dated 12.8.1994 and was also put in possession of the suit property on 12.8.1994.

After the death of Ramdas on 27.2.2000, the father of the respondent No. 1, respondent No. 1 got the suit property mutated in his name and also in the names of respondent Nos. 2 to 4. It is contended that the application for mutation was filed by the respondent No. 1 without knowledge or consent of the respondent Nos. 2 to 4. After having mutated the names of the respondent Nos. 1 to 4 in the City Survey and Municipal records, the respondent No. 1, it is further submitted, also got a false relinquishment deed dated 11.1.2001 executed and registered showing that the respondent Nos. 2 to 4 had relinquished their shares in the suit property in his favour. It is submitted that this relinquishment deed does not bear the signatures of respondent Nos. 2 to 4. The respondent Nos. 2 to 4 had also sworn an affidavit disputing the said relinquishment deed dated 11.1.2001 based on which the husband of the appellant lodged First Information Report against the respondent No. 1. It is alleged that the criminal prosecution which has been initiated on the basis of said First Information Report is pending before the Court of Chief Judicial Magistrate, Nagpur. In these criminal proceedings, the report of hand writing expert has been received and it discloses that in the opinion of the hand writing expert, the signatures on the relinquishment deed dated 11.1.2001 are not of respondent Nos. 2 to 4.

It is submitted by the appellant that even though Ramdas had expired on 27.2.2000, the power of attorney dated 25.9.1992 having been executed for a valuable consideration continued to hold the field and was valid. In view of the fact that the deceased Ramdas had created the interest of respondent No. 5 in the suit property under the agreement dated 25.9.1992 and had also received entire consideration from respondent No. 5 during his lifetime, the power-of-attorney remained valid and, therefore, in pursuance of said registered power-of-attorney dated 25.9.1992, respondent No. 5 executed sale-deed of the suit property in favour of appellant on 1.7.2000. However, the same could not be registered for want of no objection certificate from the Nagpur Improvement Trust and also for non-submission of income tax clearance certificate.

In view of afore-stated developments, the appellant filed a suit being Special Civil Suit No. 280/2002 for declaration of her ownership over the suit property by virtue of sale-deed dated 1.7.2000 and alternatively for specific performance of contract and for injunction restraining the respondent No. 1 from alienating the suit property and disturbing her peaceful possession over the suit property.

The respondent No. 1 opposed the said suit by filing a separate written statement. His defence, as stated earlier, consisted of the same pleadings he had made as plaintiff in Special Civil Suit No. 368/2004. He admitted that Gandhi Nagar Cooperative Society had allotted the suit property to Ramdas, but he denied that it was self-acquired property of Ramdas. He disputed execution of the agreement on 25.9.1992 in favour of respondent No. 5, stating that it was vague and denied that the sale consideration was paid by the respondent No. 5. He denied that out of the said consideration of Rs. 5,00,000/- he received an amount of Rs. 1,65,000/-. He denied that the possession of the suit property was given to respondent No. 5 by Ramdas. He submitted that in fact for making construction over the suit property, the respondent No. 5 had extended loan of Rs. 1,00,000/- to deceased Ramdas and deceased Ramdas deposited the same in the account of respondent No. 1. The respondent No. 1 had withdrawn the said amount and given it to his father. He submitted that the loan amount of Rs. 1,00,000/- came to be expended by his father in making construction over the suit property. He further submitted that upon the request of respondent No. 5, the deceased Ramdas started collecting booking amounts from the prospective buyers and out of these funds, deceased Ramdas repaid the entire loan amount with interest to respondent No. 5 and discharged himself from the loan liability. He further submitted that the respondent No. 5 had collected some more funds from the prospective purchasers without knowledge of his father. He further submitted that as the deceased Ramdas found respondent No. 5 as an unscrupulous broker and builder, he terminated the contract of construction given to the respondent No. 5. He also submitted that his father refunded the amount received by him through the respondent No. 5 back to the prospective purchasers. He submitted that by that time construction of ground floor structure only was completed and as some payments fell short, deceased Ramdas found it necessary to take help of another person for completing the structure and also fulfilling his liability towards the prospective purchasers.

The respondent No. 1 further submitted that although the power-of-attorney dated 25.9.1992 was executed, it was not binding upon his father as well as himself as all arrangements with respondent No. 5 had been terminated.

The respondent No. 1 further submitted that when his father was finding it difficult to go ahead with the construction, architect Sukumar Nashine along with his wife Kiran (appellant) came forward and they offered to pay Rs. 1,50,000/- as loan in cash to deceased Ramdas. For refund of the loan amount, his father agreed to let the appellant and her husband occupy the newly constructed ground floor on leave and licence basis with licence fee of Rs. 1,500/- per month. They were allowed to occupy as licensees the ground floor premises of the construction made on the suit property till 30th November, 2002 and the repayment of the loan amount was agreed to be adjusted against the monthly licence fee.

The respondent No. 1 further submitted that the appellant, her husband and respondent No. 5 in collusion with each other, falsely prepared documents including unregistered sale-deed dated 1.7.2000. He further submitted that this document was rightly refused to be registered by the Sub-Registrar as Nagpur Improvement Trust as well as Income Tax Department did not give their no objections. He submitted that his mother and his sister, respondent No. 2 to 4 had also executed a registered deed in his favour relinquishing their rights and interests in the suit property on 11.1.2001 and, therefore, he has become the absolute owner of the suit property. He further submitted that accordingly in the record of the City Survey Office No. III and Nagpur Municipal Corporation the suit property has been mutated in his name as owner thereof. He further submitted that since the appellant did not vacate the suit property, he served a notice upon her under Section 106 of the Transfer of Property Act calling upon her to vacate the suit property within one month from the receipt of the notice and as the appellant failed to comply with it, the respondent No. 1 filed a suit for eviction, possession, damages and mesne profits against the appellant.

The respondent Nos. 2 to 4, however, fully supported the case of the appellant. Likewise the respondent No. 5 also filed written statement supporting the case of the appellant. The respondent Nos. 2 to 5 confirmed the fact that the deceased Ramdas had executed the agreement dated 25.9.1992 in favour of respondent No. 5 and had received the entire sale consideration from the respondent No. 5 in terms of said agreement. The execution of power-of-attorney dated 25.9.1992 is also admitted by them. Similarly, the execution of the agreement dated 12.8.1994 has been admitted by the respondent Nos. 2 to 5. The respondent Nos. 2 to 5 denied the execution of the relinquishment deed dated 11.1.2001 by respondent Nos. 2 to 4.

After recording evidence in the matter and hearing the respective counsel, the learned Civil Judge found that the agreement dated 25.9.1992 and also the agreement dated 12.8.1994 being not an agreements to sell, the appellant was not entitled to enforce specific performance of contract against the respondents nor was entitled to any declaration of her ownership in respect of the suit property. The learned Civil Judge also found that since the relinquishment deed dated 11.1.2001 has not been challenged by respondent Nos. 2 to 4 by specifically filing the suit, the respondent No. 1-Vivek was the owner of the suit property and since the appellant did not have any right, title or interest in the suit property, the respondent No. 1 was entitled to eviction and possession of the suit property from the appellant. Accordingly, by his judgments and decrees delivered on 30.9.2009, the learned Civil Judge, Senior Division dismissed the Special Civil Suit No. 268/2002 and partly decreed the Special Civil Suit No. 368/2004. These judgments and decrees are under challenge in the present appeals.

I have heard Mr. Ashutosh Dharmadhikari, learned counsel for the appellant, Mr. A.M. Deshpande, learned counsel for respondent Nos. 2 to 4, Mr. Garote, learned counsel for the respondent No. 5 and Mr. V.R. Mokadam in-person. I have carefully gone through the impugned judgments and decrees and also the record of both the suits. Now, following points arise for my consideration :

i. Whether the agreements dated 25.9.1992, 12.8.1994 are the agreements of sale entitling the appellant to enforce the specific performance of contract against the respondents ?

ii. Whether the respondent No. 1 is the sole and exclusive owner of the suit property ?

iii. Whether the respondent No. 1 is entitled to reliefs of eviction, possession, damages and mesne profits against the appellant ?

Mr. Dharmadhikari, learned counsel for the appellant states that the agreements dated 25.9.1992 and 12.8.1994 are the agreements of sale and for some reason sale-deed could not be executed during the lifetime of the deceased Ramdas and though an attempt to execute the sale-deed by Ravi Sharma on 1.7.2000 using irrevocable power of attorney executed in his favour by deceased Ramdas, was made, it could not be registered before the Sub-Registrar for want of no objection certificates from the Nagpur Improvement Trust and the Income-Tax authorities. He submits that the power-of-attorney executed in favour of Ravi Sharma was irrevocable and did not come to an end with the death of executant as it was given for consideration and had already been acted upon and what had remained was only the final act of execution of the registered sale-deed. He further submits that refusal of registration of sale-deed was the point which could be said to be the time when enforcement of the contract of sale was refused and, therefore, the suit as filed by the appellant was well within the limitation as per second part of Article 54 of the Limitation Act, 1963.

Learned counsel further submits that the agreements of sale are required to be construed by taking into account the intention of the parties and attending the circumstances and if this is done, the only conclusion that could be drawn would be that these agreements dated 25.9.1992 and 12.8.1994 are in reality the agreements of sale amenable to their specific performance when the enforcement of underlying contract is refused. In support he has placed reliance upon the following cases :

(i) H.M. Krishna Reddy Vs. H.C. Narayana Reddy,

(ii) Harnam Singh Vs. Mangal Singh,

(iii) Dalip Singh Vs. Ram Nath and Another,

(iv) Ranjana Nagpal alias Ranjana Malik Vs. Devi Ram and Others,

(v) Dutta Seethamahalakshmamma and Others Vs. Yamadala Balaramaiah and Another,

(vi) Mst. Sugani Vs. Rameshwar Das and Another,

(vii) Panchanan Dhara and Others Vs. Monmatha Nath Maity (Dead) thr. L.Rs. and Another,

(viii) Bhajan Lal and Another Vs. Bal Govind and Others,

(ix) M/s. Steelmans Advertising Agencies Pvt. Ltd., Bombay Vs. The Municipal Corporation for Greater Bombay,

(x) Volition Investment Pvt. Ltd. Vs. Mrs. Madhuri Jitendra Mashroo and etc.,

(xi) Shri Ramesh Chand vs. Suresh Chand and another, (Unreported case) RFA 358/2000, decided on 9th April, 2012.

(xii) Shri Ram Murti Singh Sisodia vs. Shri Pratap Singh Sisodia and others, (Unreported case) RFA 146/2004, decided on 24th April, 2012.

(xiii) Hardip Kaur vs. Kailash and another, (Unreported case) RFA 648/2006, decided on 18th May, 2012.

Mr. A.M. Deshpande, learned counsel for respondent Nos. 2, 3 and 4 and Mr. A.G. Gharote, learned counsel for respondent No. 5 have supported the argument of learned counsel for the appellant in both the appeals.

Respondent No. 1 Mr. Vivek Mokadam has argued in-person. He submits that there was neither any transfer of the suit property in favour of respondent No. 5 and subsequently in favour of appellant nor creation of any interest, right or title in the suit property by any of the alleged agreements or the alleged irrevocable power of attorney. He submits that the first agreement dated 11.9.1992 expired due to non-execution of the sale-deed on or before 31st December, 1992 and, therefore, all the subsequent agreements such as agreement dated 25.9.1992 and agreement dated 12.8.1994 and also the alleged irrevocable power-of-attorney dated 25.9.1992 being based upon the first agreement dated 11.9.1992 became un-enforceable, un-executable and as of no consequence. He submits that no consideration whatsoever as alleged by the appellant was paid to and received by his deceased father Ramdas and that amount of Rs. 1,00,000/- that was stated to be deposited in the account was actually by way of loan which was re-paid by his father to respondent No. 5-Ravi Sharma.

Mr. Mukadam further submits that as no right, title or interest was created in the suit property either in favour of respondent No. 5 or in favour of the appellant, the suit property devolved upon himself, his mother-respondent No. 2 and his sisters, respondent Nos. 3 and 4 after the death of Ramdas on 27.2.2000. He further submits that thereafter there was a registered relinquishment deed executed by respondent Nos. 2 to 4 relinquishing all their rights and interests in the suit property in favour of himself on 11.1.2001 and by virtue of this registered relinquishment deed, on and from 11.1.2001, he became the absolute owner of the property.

Mr. Mokadam further submits that since the appellant and her husband were inducted in the suit property in August 1994 by his father as licensees and the agreement of licence has been terminated by him, the appellant and her husband are the trace passers and, therefore, he is entitled to evict them from the suit property and get the possession thereof and also receive damages for unauthorized occupation of the suit property by the appellant and her husband. Mr. Mokadam also submits that the suit property has been validly mutated in his name in the record of the City Survey and Municipal Corporation and all legal proceedings challenging the mutation entry in his name right up to the High Court have been concluded in his favour, thereby affirming the fact that he is the lawful owner of the suit property and entitled to its possession.

The case of the rival parties is essentially based upon the documentary evidence and, therefore, it would be necessary for me to deal with the same. These documents are the agreements of sale dated 11.9.1992 and 25.9.1992, irrevocable power-of-attorney dated 25.9.1992 executed by the deceased Ramdas in favour of respondent No. 5, agreement dated 12.8.1994 entered into between the respondent No. 5 and the appellant with deceased Ramdas and his wife respondent No. 2 as the consenters, consent letter dated 12.8.1994 issued by Ramdas and respondent No. 2 in favour of appellant, receipt dated 22.9.1992 issued by the respondent No. 1 acknowledging receipt of Rs. 1,00,000/-, receipt dated 22.9.1992 issued by the respondent No. 1 acknowledging receipt of Rs. 65,000/- in cash and unregistered document styled as sale-deed dated 1.7.2000 executed by the respondent No. 5 in favour of appellant. There is also a registered relinquishment deed allegedly executed by respondent Nos. 2 to 4 in favour of respondent No. 1 relinquishing their rights and interests in the suit property which is a disputed document and also a relinquishment deed dated 25.9.1992 executed by the respondent No. 1 in favour of his father deceased Ramdas, which is another disputed document.

The afore-stated documents have been extensively referred to in the evidence adduced by the parties in Special Civil Suit No. 368/2004 and have also been duly proved except for document of relinquishment deed dated 11.1.2001, through the evidence of Sukumar Nashine-husband of the appellant, Ravi Sharma-respondent No. 5 and Shamuwel Walson and Jagat Sanghani, who were the attesting witnesses of the defendant (appellant herein) in Special Civil Suit No. 368/2004. Shamuwel Walson was the attesting witness for the agreement dated 25.9.1992, irrevocable power of attorney dated 25.9.1992 and relinquishment deed dated 25.9.1992 and Jagat Sanghani was the attesting witness to the agreement dated 11.9.1992. Shamuwel Walson had also witnessed the execution of two receipts dated 22.9.1992 by respondent No. 1 acknowledging receipt of payment of Rs. 1,00,000/- by demand draft No. 288765 drawn on State Bank of India and Rs. 65,000/- in cash by respondent No. 1 towards full and final satisfaction of all his claims in the suit property. The agreement dated 12.8.1994 has also been duly proved by respondent No. 5 Ravi Sharma, who was one of the executing parties. There is absolutely nothing in the evidence of any of these witnesses showing that all these documents are not duly proved and, therefore, their contents cannot be read in evidence. These documents have been exhibited in the said suit being Special Civil Suit No. 368/2004 and it would be convenient to refer these documents by their exhibit numbers given in Special Civil Suit No. 368/2004. The agreement dated 11.9.1992 is at Exhibit-193, agreement dated 25.9.1992 is at Exhibit 194, registered irrevocable power of attorney is at Exhibit-195, agreement dated 12.8.1994 is at Exhibit-258, consent letter dated 12.8.1994 is at Exhibit-259, two receipts dated 22.9.1992 are at Exhibit-130 and 248, unregistered sale-deed dated 1.7.2000 is at Exhibit-199 relinquishment deed dated 25.9.1992 is at Exhibit-293. The relinquishment deed dated 11.1.2001 has been exhibited as Exhibit-140, although none of the attesting witnesses have been examined by respondent No. 1 and that it is a document highly disputed by the mother and sisters of respondent No. 1, who are respondent Nos. 2 to 4 and who have denied their signatures appearing in this relinquishment deed. There is also a State Examiner''s report vide Exhibit-139 in which the expert has given an opinion that the signatures appearing in the said relinquishment deed do not match with the signatures of respondent Nos. 2 to 4. It is pertinent to note here that in Special Civil Suit No. 368/2004 even though mother and sisters had denied affixing their signatures to the said relinquishment deed dated 11.1.2001 and this fact was admittedly within the knowledge of the respondent No. 1 when he filed the suit for eviction, possession and damages against the appellant, the respondent did not join his mother and sisters as party-defendants to the suit.

The agreements dated 11.9.1992, 25.9.1992 and 12.8.1994 would be required to be interpreted by reading their contents in their entirety in order to find out whether these documents or any of them can be treated as agreements of sale creating a right in favour of appellant to enforce their specific performance, if all other parameters of law go in favour of the appellant. It is well settled law that the document is required to be interpreted and construed by ascertaining the intention of the parties by taking into account not only the contents of the document, but also the surrounding circumstances and that nomenclature of the document or its title would not inhibit the intent of the parties and would not control the contents of the document. This view is expressed by the learned Single Judge of this Court in the case of M/s. Steelmans Advertising Agencies Private Limited (supra). It would be of great use to quote the relevant observations of the learned Single Judge appearing in paragraph ''7'' as under :

"............ Law is a practical instrument, a working tool in a work-a-day world. It must be understood in its context and not as an artifice leading to public ridicule and private gain. Nomenclatures are not normally the nucleus to understand the nature of any agreement, the guiding factors being always the intent and the surrounding circumstances......... "

Even in the case of Volition Investment Pvt. Ltd. (supra) the question whether a memorandum of understanding between the parties was sale or development agreement was resolved by the learned Single Judge of this Court by ascertaining the intention of the parties gathered from the entire contents of the document and surrounding circumstances. It was contended on behalf of the plaintiff that the memorandum of understanding was not a mere agreement for development but it was an outright sale of the property to the plaintiffs and whereas this argument was strongly opposed by the defendant by contending that it was only for development of the property as the plaintiff was only given a right to develop the property on certain terms and conditions set down in the memorandum of understanding and that there was no actual sale and purchase of the land or the structure. The learned Single Judge considered various clauses of the memorandum of understanding which indicated that the plaintiff paid the price in part and in return the plaintiffs were promised by the defendant the rights and interests in the property to be developed by them and to be sold by them in the open market and to earn or retain the whole amount with them and there were also given all rights of the landlord qua the tenants/occupants of the suit premises and he was virtually put in place of owners/defendants of the building while dealing with the tenants in every respect as provided in the memorandum of understanding, including the right to collect the rent from the tenants/occupants. It was, therefore, held that the memorandum of understanding was a sale-deed and not merely a development agreement inasmuch as the document showed that the plaintiff virtually stepped in the shoes of the landlord of the building which role would never be assigned to a developer simplicitor of the structure.

Bearing in mind the above referred principles of law, let us now consider the various agreements and ascertain as to what actually they are and they are not.

(i) The agreement dated 11.9.1992 vide Exh.-193 is an agreement of sale of the suit property executed by deceased Ramdas in favour of respondent No. 5 for total consideration of Rs. 5,00,000/-. It discloses that on the date of execution of the agreement an amount of Rs. 11,111/- was paid by respondent No. 5 to the deceased Ramdas and remaining amount was agreed to be paid at the time of execution and registration of the sale-deed to be done on or before 31st December, 1992. However, it is seen from the evidence of appellant''s side that before the time for execution of the sale-deed came to an end, this agreement was substituted by another agreement dated 25.9.1992 vide Exh.-194 in which there is no reference whatsoever to agreement dated 11.9.1992. In the said subsequent agreement, it is only mentioned that out of consideration of Rs. 5,00,000/-, deceased Ramdas and his wife had received an amount of Rs. 11,111/- on 11.9.1992. This subsequent agreement also witnessed detailed terms of agreement between the respondent No. 5 on the one hand and deceased Ramdas and his wife (respondent No. 2) on the other. They were regarding how the suit property was to be developed, how the tenants were to be dealt with and how the sale-deed was to be executed in favour of various prospective buyers, thereby indicating that it was a new agreement which replaced earlier agreement. Therefore, the argument of respondent No. 1 that as the agreement dated 11.9.1992 vide Exh.-193 expired on 31.12.1992, all further agreements based upon the original agreement vide Exh.-193 were not enforceable and were actually of no consequence, does not hold any water.

(ii) Upon a careful examination one finds that the agreement dated 25.9.1992 (Exh.-194) and agreement dated 12.8.1994 (Exh.-258) are connected with each other and are required to be read together and also along with registered irrevocable power-of-attorney dated 25.9.1992 vide Exh.-195. The irrevocable power of attorney facilitates assertion of various rights given to respondent No. 5 by deceased Ramdas and respondent No. 2 in respect of the suit property and the agreement dated 12.8.1994 is also made in accordance with the rights created in favour of respondent No. 5 by the earlier as agreement dated 25.9.1992 and power of attorney dated 25.9.1992.

(iii) The agreement dated 25.9.1992 vide Exh.-194 begins with the clause that respondent No. 5 has been appointed by deceased Ramdas and his wife respondent No. 2 as promoter and builder for the development of the suit property by constructing a multi-storied building thereon containing self-contained independent tenements . However, as one goes on reading the further terms, one comes across conferment of various rights by deceased Ramdas and respondent No. 2 upon respondent No. 5. The respondent No. 5 is given a right to obtain electric connection and water connection (clause 5) and is charged with a duty to incur all the costs necessary therefor. It is stipulated that respondent No. 5 would make his arrangement for mobilizing necessary funds required for the construction of the building from the prospective buyers (clause 6) of the tenements . He has also been given a right to execute agreements of sale of tenements in favour of prospective buyers and register the same (clause 7). The respondent No. 5 is given further right along with deceased Ramdas and respondent No. 2 to execute and register the sale-deed or any other document of title in favour of the purchasers of the tenements (clause 8). The respondent No. 5 has been allowed to keep to himself whatever profit (clause 20) he would earn from the construction and sale of the tenements . He has also been given a right to get the suit premises vacated from the tenants (clause 23). There are certain obligations imposed upon the respondent No. 5 such as incurring of the entire costs of preparing all the documents, paying of remuneration of the architect, engineer and legal advisor, taking upon himself the entire liability for the breaches of any law, rules or regulations, if any, and obtaining of no objection certificate from the Nagpur Improvement Trust at his own costs.

It is further seen from the said agreement dated 25.9.1992 (Exh.-194) that in consideration of conferment of afore-stated rights and imposing of obligations upon respondent No. 5, the respondent No. 5 has agreed to pay a sum of Rs. 5,00,000/-, out of which an amount of Rs. 1,76,111/- was acknowledged to be received by deceased Ramdas and respondent No. 2 from respondent No. 5 and the balance amount of Rs. 3,23,889/- was agreed to be paid by respondent No. 5 to Ramdas and respondent No. 2 on or before 31.12.1993. It was also agreed that time was the essence of the contract and in the event of failure of respondent No. 5 to make the payment on the stipulated dates, he would be liable to pay interest at the rate of 18% per annum.

From the above referred terms and conditions of the agreement vide Exh. 194 what can be seen is that although it begins with the clause that respondent No. 5 is being appointed as promoter and builder for the development of the suit property, all rights that have been created in favour of respondent No. 5 by the subsequent clauses of the agreement indicate that the deceased Ramdas and respondent No. 2 agreed to sale the suit property to respondent No. 5 and that is the reason why, respondent No. 5 has been given rights to raise funds from the prospective buyers, to execute the agreement of sale of tenements and also execute registered sale-deeds together with Ramdas and his wife, to evict the tenants at his own risk and costs, to exclude entirely Ramdas and his wife from sharing any profit that may be earned by respondent No. 5 by developing the plot and selling the tenements and in lieu of these rights, Ramdas and his wife agreed to receive sum of Rs. 5,00,000/- from respondent No. 5 with no further stipulation regarding reservation and allotment of some tenements to them. Not only that, respondent No. 5 is imposed with obligation to incur all necessary costs including payment of remuneration to architect, advocate and so on. Usually, an agreement to develop a piece of land would not contain such terms and conditions creating so many rights in favour of developer. Ordinary, the developer would come on to the suit property, develop it and after receipt of his remuneration for the services rendered by him, he would walk away from the land.

In the instant case, the agreement is not on such lines and as said earlier, it even confers right upon respondent No. 5 to execute not only agreements of sale with the prospective buyers, but also execute sale-deeds, though execution of the sale-deed has been stipulated to be together with Ramdas and his wife and that is understandable as this agreement is not a sale in the sense that it does not actually transfer ownership in exchange of price paid or promise, although price has been entirely paid, within the meaning of section 54 of the Transfer of Property Act, 1882. But, the fact remains that all the rights of owner barring the ownership or title have been given and these rights of owner have also been made transferable by respondent No. 5 by virtually putting him in the position of the owner himself. Therefore, I find that the intention and the attending circumstances of this agreement vide Exh.-194 sufficiently indicate that it is virtually an agreement of sale of the suit property.

The interpretation so given to the agreement dated 25.9.1992 vide Exh.-194 is bolstered up by various powers given to respondent No. 5 in an irrevocable manner by way of a registered deed of power of attorney by deceased Ramdas and his wife on 25.9.1992 vide Exhibit 195. These powers include the power to negotiate and enter into agreements with the prospective buyers of the tenements and receive earnest money and booking amounts to register the said agreements. These powers include, inter alia, the powers to execute sale-deed and other necessary documents in favour of prospective buyers. This document has been executed on 25.9.1992, the same day on which the agreement dated 25.9.1992 was executed. The powers conferred by the power of attorney clearly unequivocally make the intention of the principle clear-to virtually put respondent No. 5 in the shoes of the owner of the suit property.

The third document, the agreement dated 12th August, 1994 (Exh.-258), has been executed between respondent No. 5 of the one part and appellant of the other part with deceased Ramdas and his wife being consenters thereto. It is not in dispute that this document was impounded and the appellant paid the deficit stamp duty together with penalty. I have already found that it has been duly proved through the evidence of respondent No. 5, one of the executing parties and Sukumar Nashine-husband of the appellant and one of the attesting witnesses.

The said agreement (Exh.-258) refers to the agreement dated 25.9.1992 and states that the agreement dated 25.9.1992 was for promotion and development of a multi-storied building and also transfer of the suit property for a consideration of Rs. 5,00,000/-. In its recitals, it is also stated that the respondent No. 5 paid the full consideration or price of the suit property to the consenters and on the date of the agreement dated 12.8.1994, nothing remained to be paid towards the consideration of the suit property to the consenters. The recitals further state that since respondent No. 5, after having completed the work of construction of the ground floor as per the sanctioned plan, was unable to undertake further construction because of his busy schedule and inability to raise sufficient finances. Therefore, it has been agreed between respondent No. 5 and the appellant that respondent No. 5 would sale and the appellant would purchase entire plot with existing construction thereon for a total consideration of Rs. 9,02,000/-. This agreement further stipulates the manner in which the consideration is to be paid and also the time within which it is to be paid. It particularly stipulates that part consideration of Rs. 4,00,000/- is to be paid within a period of 3 months from the date of agreement with grace period of 45 days and if there is any failure to pay the said amount even within the grace period, the agreement would come to an end and the amount paid by the appellant to respondent No. 5 would be forfeited.

By this agreement vide Exhibit-258, the possession of the suit property has been handed over by respondent No. 5 to the appellant and liberty is given to the appellant to carry out further construction work. This agreement acknowledges the fact that respondent No. 5 is holding a registered irrevocable power of attorney given to him by the consenters and he has been authorized and empowered to do all acts, deeds and things that may be necessary in relation to the suit property. The agreement further records an agreement between the parties thereto that respondent No. 5 and the consenters that is deceased Ramdas and his wife would execute such document including sale-deed in favour of the appellant as may be considered necessary to transfer rights, title and interests in the suit property in favour of the appellant.

The above referred terms and conditions of the agreement dated 12.8.1994 vide Exhibit 258 clearly show that it is in pursuance of the previous agreement dated 25.9.1992, which has been described by the parties to it as agreement for development and transfer of the suit property to respondent No. 5 and also irrevocable power of attorney given to respondent No. 5 by the original owner on 25.9.1992. These terms and conditions also connote that it is nothing but an agreement to sell and this fact has been acknowledged and confirmed by the original owner. The original owner and his wife, by the said agreement dated 12.8.1994, have also agreed to execute together with respondent No. 5 such sale deed in favour of the appellant as may be found necessary for transfer of rights, title and interests in the suit property to the appellant. Although, this agreement stipulates that a part consideration thereof i.e. a sum of Rs. 4,00,000/- must be paid within a period of 3 months together with grace period of 45 days, failing which the agreement would stand terminated, the agreement does not lay down any condition regarding time limit within which the sale-deed should be executed by respondent No. 5 and the consenters in favour of the appellant. It would mean that, if the part consideration of Rs. 4,00,000/- is paid by the appellant to the respondent No. 5 within the stipulated period of time, the execution of the sale-deed can take place at such point of time as may be convenient to the parties. Thus, this agreement dated 12.8.1994 is also an agreement of sale.

The above referred interpretation given to the agreement dated 12.8.1994 is further confirmed by various admissions and acknowledgments given by the original owner Ramdas and his wife in their consent letter dated 12.8.1994 vide Exhibit 259. By this consent letter, the original owner and his wife acknowledged the receipt of the entire price/consideration for sale of the suit property to the respondent No. 5 in the letter and spirit of the agreement made by them with respondent No. 5, which agreement is of 25.9.1992. The original owner and his wife further admit that no part of price of the suit property has remained outstanding against respondent No. 5. It further shows that they have given their consent for rendering full co-operation for executing such arrangement or deed as may be necessary to enable the transfer of the rights, title and interests in the suit property. They have also given their consent to the appellant taking over the responsibility of completion of the construction as per the sanctioned map. They acknowledge the receipt by their son Vivek-respondent No. 1, the value of his share in the suit property and also the fact of his executing a relinquishment deed in respect of the suit property in favour of the original owner.

Once it is found that the agreements dated 25.9.1992 and 12.8.1994 are the agreements of sale and also found that the entire price of the suit property has been received by the original owner and his wife and also by respondent No. 5 in assertion of the rights created in his favour by the original owner by agreement dated 25.9.1992, what remained under these agreements was only transfer of ownership in favour of the appellant and if that was not done because of some circumstances not within the control of the parties, these agreements would be capable of being specifically enforced in terms of Section 15 read with Sections 16 and 20 of the Specific Relief Act, 1963.

One may argue that the requirement of Section 16 regarding placing on record proof that the plaintiff i.e. the appellant in First Appeal No. 1437/2009 was and is always ready and willing to perform the essential terms of the contract which are to be performed by her is missing. I must say that from the overall reading of the contents of the agreement of sale dated 12.8.1994, in particular, together with the consent letter dated 12.8.1994, it becomes clear that the essential terms of the contract have already been performed by the appellant when the payment of the entire price or consideration for sale of the suit property was paid and acknowledged and admitted by the original owner and his wife. Respondent No. 5, as seen from his evidence, has also acknowledged and admitted the receipt of his part of the price of the suit property in its entirety within the time stipulated in the agreement dated 12.8.1994. These facts would show that the essential terms of the contract were already performed and what had remained to be performed was only execution of a registered sale-deed by the original owner along with respondent No. 5 transferring actual title to the suit property in favour of the appellant.

Respondent No. 1 has vehemently argued that now no specific performance of the contract can be granted as the suit having been brought in the year 2002 was barred by limitation as prescribed under Article 54 of the Limitation Act, 1963. Under Article 54 the prescribed period of limitation for specific performance of a contract is of 3 years and the time from which period of 3 years begins to run is the date fixed for the performance and when no such date is fixed, it is the time when the plaintiff gets notice of refusal of the performance. I have already noted that no date has been fixed in the agreement to sell dated 12.8.1994 for the performance of the contract. Therefore, the limitation period in the instant case would be governed by second part of Article 54 and it would be from the time when the appellant noticed that performance was refused.

Mr. Mokadam-respondent No. 1 submits that the limitation period, whether governed by first part or second part, always begins from a definite date. He further submits that when date is fixed for the performance of the contract, the limitation period would commence from that date and when no date is fixed, the limitation period would begin from the date on which the plaintiff notices the refusal. He further submits that in both the cases, the limitation period begins to run from definite dates and, therefore, there is no question of finding out any intention of parties from other circumstances so as to determine the date from which limitation will start. For this submission, he places his reliance upon the case of Ahmedsaheb Abdul Mulla (by proposed lrs.) vs. Bibijan & others, reported at AIR 2005 SCC 462.

In the said case of Ahmedsaheb, the Hon''ble Supreme Court has held that when date is fixed for performance, it means that there is a definite date fixed for doing a particular act and even in second part of Article 54, the stress is upon "when the plaintiff has noticed that performance is refused" thereby indicating that there is a definite point of time, when the plaintiff notices the refusal. The Hon''ble Apex Court accordingly held that both the parts of Article 54 refer to definite dates and, therefore, there would be no question of finding out an intention from other circumstances. This would make it clear that for both the parts of Article 54, the starting point of limitation is of a certain date, which date in case of first part is the date fixed in the contract for its performance and in case of second part this date is of the point of time when the plaintiff notices the refusal. Same law has been laid down by the Hon''ble Apex in the case of Pancharan Dhara and others (supra) and is followed by other High Courts in the cases referred to at Sr. Nos. (i), (ii), (iii), (v), (vii) and (viii) in paragraph No. 23 above. The case at Sr. No. (iv) referred to in paragraph 23 of this judgment, however, would be of no assistance to the appellant as there was a stipulation in the agreement that the defendant would execute the sale-deed in favour of the plaintiff within six months from the date of sanction of mutation in their favour thereby indicating that a specific date for performance of contract was fixed in the agreement itself which attracted first part of Article 54. In the instant case it has been found that second part of Article 54 would be applicable.

Now, it would be necessary to find out the date on which date the appellant received notice of refusal of performance of contract. For this purpose, the unregistered sale-deed dated 1.7.2000 (Exh.-199) would be relevant. This document has been executed by respondent No. 5 in favour of the appellant by using the power conferred upon him by irrevocable power of attorney dated 25.9.1992 by the original owner and his wife. Conferment of power upon respondent No. 5 to execute a sale-deed is clearly there in the said power of attorney and also in the agreement dated 12.8.1994. But, legally speaking that power could not have been conferred upon the respondent No. 5 as the ownership had not been transferred to him by a document of title or document of sale within the meaning of Section 54 of the Transfer of Property Act and, therefore, it was agreed in the subsequent agreement of sale dated 12.8.1994 that the sale-deed would be executed by respondent No. 5 together with original owner and his wife in favour of the appellant as and when found necessary by the parties. But, before it was considered necessary to execute the sale-deed, Ramdas, the original owner passed away. After his death, respondent No. 1 started disputing the right of the appellant to get the title transferred to him as he got mutated it in his name, respondent Nos. 2 to 4 claimed that they never relinquished their rights and interests in the suit property in favour of respondent No. 1 and they admitted the right of the appellant to obtain clear title to the suit property. These circumstances led to execution of the unregistered sale-deed (Exh.-199) by using the irrevocable power of attorney in his favour.

It may be noted at this juncture that the said unregistered document (Exh.-199) did not contain signatures of the original owner and contained only signature of respondent No. 5 and, therefore, was kept pending for registration by the office of the Sub-Registrar, pending receipt of no objections from the Municipal Corporation and Income-tax authorities. When the clearances were not received from both these offices and they could not have been given as by that time the suit property was already mutated in the name of legal heirs of Ramdas, after his death. Since the property had not been transferred to respondent No. 5, the title remained with Ramdas and after his death, it devolved upon his wife and children by intestate succession and, therefore, there was nothing wrong in mutating the suit property in the names of respondent Nos. 1 to 4. Further mutation in the name of respondent No. 1 alone, of course, is a matter of dispute, considering the pleadings of parties and pendency of criminal case. The fact, however, remains that such a sale-deed dated 1.7.2000 could not have been registered by the office of the Sub-Registrar and, therefore, it was rightly rejected on 25.1.2002. This date of refusal of the registration of the sale-deed in the afore-stated facts and circumstances will have to be taken as the date when the appellant-plaintiff had the notice of refusal of performance of the contract and the limitation period would begin to run from this date. Special Civil Suit No. 280/2002 filed for enforcing the specific performance of contract and permanent injunction was instituted in March, 2002, well within the period of 3 years from the date of notice to the appellant of refusal of the performance of the contract and as such was within limitation. Therefore, I find no substance in the argument of respondent No. 1 that the suit was filed after expiry of the limitation period as prescribed under Article 54 of the Limitation Act.

As it has been seen that there has been a refusal to registration of sale-deed executed by respondent No. 5 in favour of appellant and the appellant also being in possession of the suit property since 12.8.1994 having paid the entire consideration and nothing had been left to be performed by her under the terms of the agreement the appellant was well within her right to demand specific performance of contract. If deceased Ramdas had been alive, he would have been responsible for execution of the sale-deed together with respondent No. 5 and since he was not alive when specific performance of the contract was sought to be enforced, his obligation was transferred to his wife (respondent No. 2), his son respondent No. 1 and his daughters (respondent Nos. 3 and 4) on whom the suit property had been devolved by intestate succession. While this obligation has been acknowledged and accepted by respondent Nos. 2 to 4, as seen from their pleadings and appellant''s evidence and these respondents have also shown their willingness to perform their part of the contract, the respondent No. 1 has refused to perform the obligation of his father, which is evident from his efforts to get the property mutated in his sole name in spite of the appellant being in its possession and his mother and sisters admitting the claim of the appellant. The appellant has not only paid the entire consideration but has also enjoyed the possession of the suit property since the year 1994 and respondent No. 1 being admittedly not in possession of the suit property for a long period of time, there would be no question of the appellant acquiring an unfair advantage over respondent No. 1 or causing of any hardship to respondent No. 1 or making inequitable the specific performance of the contract. On the contrary, the equity would lie in favour of appellant if specific performance is directed to be enforced and if it is not so directed, it would involve hardship for the appellant-plaintiff and would also put respondent No. 1 to an unfair advantage over the appellant-plaintiff.

Learned counsel for the appellant has argued that alternatively a direction can also be given to register unregistered sale-deed dated 1.7.2000 as it has been executed by respondent No. 5 in favour of the appellant in pursuance of irrevocable power of attorney which was executed by the principle for a consideration and in pursuance of which, an agreement of sale was already entered into between respondent No. 5 and the appellant and sale-deed was only a consequential act of the earlier agreement dated 12.8.1994. He also submits that in such a case, the irrevocable power of attorney continues to remain valid, even after the death of the principle. For this submission, learned counsel has placed reliance upon some of the case laws which have been referred to at Sr. Nos. (xi) to (xiii) and also the case of Vithaldas Rama Lotlikar Vs. Jose Menino Godinho and Others, .

No doubt, in all the cases so relied upon by the learned counsel for the appellant, it has been held that when the power of attorney is executed for valuable consideration or when it has been used by executing an agreement, it would not be extinguished by the death of the executant or the principle and that execution of the sale-deed would be only a consequential act of the earlier agreement. In the instant case, as well, the power of attorney has been executed for consideration and that it has also been used by executing an agreement dated 12.8.1994 by respondent No. 5 with the consent of the original owner and his wife. But, in the subsequent agreement dated 12.8.1994 itself there is a stipulation that the sale-deed would be executed by respondent No. 5 along with consenters i.e. the original owner and his wife and, therefore, the power conferred upon respondent No. 5 by the original owners to execute the sale-deed in favour of the appellant cannot be considered to be absolute and has to be exercised jointly with the original owner and his wife. As such no direction can be issued to the Sub-Registrar for straightway registering the sale-deed dated 1.7.2000 and the proper course would be, as already stated, to issue directions for enforcement of specific performance of the contract.

In the circumstances, I find that the agreements dated 25.9.1992 and 12.8.1994 are the agreements of sale entitling the appellant to enforce the specific performance of contract against the respondents. The Point No. 1 is, therefore, answered as in the affirmative.

Now the question remains as to whether or not respondent No. 1 alone is the owner of the suit property and, therefore would be entitled to relief of eviction, possession, damages and mesne profits against the appellant.

The suit property, as seen from the pleadings of the parties and the evidence available on record, was undoubtedly the self-acquired property of the deceased Ramdas. Admittedly, he was doing service and earning money when he purchased the property from the Gandhi Nagar Co-operative Housing Society by a transfer deed dated 15.10.1960 from his own funds and that at that time respondent No. 1 was hardly 5 years old, having no source of income. The respondent No. 1 had also filed a suit being Regular Civil Suit No. 713/1989 against his father deceased Ramdas, claiming that the suit property was purchased by his father from out of the funds of joint Hindu family. This suit was dismissed for want of prosecution and the decree of dismissal became final as it was not challenged or modified at any point of time thereafter. No evidence whatsoever has been brought on record by respondent No. 1 to prove the fact that the suit property was ancestral. Therefore, I find that it has been established sufficiently that the suit property was self-acquired property of deceased Ramdas and so long as he was alive, no one including his son-respondent No. 1, had any right, title or interest in the said property and that the deceased Ramdas was free to dispose of his self-acquired property as per as his own violation and wishes, which, in fact, was done by him by agreeing to sell it initially to respondent No. 5 and, thereafter, together with respondent No. 5 to the appellant. However, before he could execute the sale-deed in favour of the appellant, he passed away and the obligation undertook by him in the afore-stated agreements came to be transferred to respondent Nos. 1 to 4 as the property devolved upon them by intestate succession. Thus, after the death of the original owner, respondent No. 1 being his son, respondent No. 2 being his wife and respondent Nos. 3 and 4 being his daughters, became the joint owners of the suit property. I must say here that even though the suit property stands mutated in the sole name of respondent No. 1 in City Survey and Corporation records, the mutation entries by themselves do not confer ownership. That is the settled position of law.

It is the contention of respondent No. 1 that by virtue of the relinquishment deed executed by respondent Nos. 2 to 4 in his favour on 11.1.2001 (Exh.-140), he has become the absolute and exclusive owner of the suit property. Unfortunately, respondent No. 1 could not prove the execution of this document by respondent Nos. 2 to 4 and also its contents, although it has been exhibited by the trial Court. Respondent Nos. 3 and 4 have been examined as defendant''s or appellant''s witnesses in Regular Civil Suit No. 368/2004 that was bought by respondent No. 1 against the appellant for eviction, possession and damages. In fact, in this suit, the mother as well as sisters of respondent No. 1 were necessary parties as to the knowledge of the respondent No. 1 they had been all along disputing their signatures on the relinquishment deed and there was also evidence on record in the nature of State Examiner''s report (Exh.-139) disclosing that in the opinion of the said expert, relinquishment deed was not in the signatures of mother and sisters of respondent No. 1. The respondent No. 1 at least should have examined one of the two attesting witnesses to the relinquishment deed. But, he did not examine any of them and even admitted that he did not know who were they and that they were only brought by the petition writer. In such circumstances, it would have to be held that the relinquishment deed vide Exhibit 140 cannot be read in evidence as its execution as well as contents have not been proved in accordance with law by respondent No. 1. Therefore, if there are mutation entries in the name of respondent No. 1, they would not by themselves prove title of respondent No. 1 to the suit property which would have to be held as jointly owned by respondent Nos. 1 to respondent No. 4.

There is also a relinquishment deed dated 25.9.1992 (Exh.-293), which has been proved by the appellant through the evidence of attesting witness, Shamuwel Walson, examined by the appellant. Insofar as this document evidencing relinquishment of right, interest and title by the respondent No. 1 in favour of his father Ramdas is concerned, it may be said, it is of no consequence as the suit property on the date of it''s execution was the self-acquired property of Ramdas, which rendered meaningless the act of relinquishment by respondent No. 1. However, this document can be read in evidence for co-lateral purpose which is that, it records an admission by respondent No. 1 that the suit property is the absolute and self-acquired property of his father Ramdas and that he has no right, title or interest in it. This document would, therefore, confirm the finding earlier recorded that the suit property was self-acquired property of Ramdas and after his death it devolved jointly upon respondent Nos. 1 to 4.

For the reasons stated above, I find that the respondent No. 1 cannot be held to be the sole and exclusive owner of the suit property and that the suit property having been devolved upon respondent Nos. 1 to 4, is jointly owned by the respondent Nos. 1 to 4 by law of intestate succession.

Once it has been found that respondent Nos. 1 to 4 are the joint owners of the property and the property is liable to be transferred by way of registered sale-deed to the appellant in specific performance of the contract, the suit brought by respondent No. 1 against the appellant for eviction, possession and damages would logically lead to it''s dismissal. Then, the trial Court has already found that respondent No. 1 has failed to prove the agreement of licence allegedly executed in favour of the appellant and her husband and this finding has not been challenged by respondent No. 1. Therefore, on this count also respondent No. 1''s said suit cannot be decreed. There is also a question of joinder of necessary parties to the suit filed by respondent No. 1 against the appellant. Although, it has been found that the respondent Nos. 2 to 4 together with respondent No. 1 were the joint owners of the suit property and had also admitted the claim of the appellant and thus were necessary parties, they were not joined as defendants. Unless it was proved by respondent No. 1 that he was the sole absolute owner of the suit property which fact he could not have proved without joining the respondent Nos. 2 to 4 as party defendants, the suit for eviction and possession could not have been decreed by the trial Court. Therefore, on the count of non-joinder of necessary parties as well in terms of proviso to Rule 9 Order 1 of the Code of Civil Procedure, the suit is liable to be dismissed.

Thus, I find that the trial Court has committed a serious error of law and facts in dismissing the suit for specific performance brought by the appellant against the respondents and decreeing the suit for eviction, possession and damages filed by respondent No. 1 against the appellant only and, therefore, the judgments and decrees rendered in both the civil suits are required to be quashed and set aside. The point Nos. 2 and 3 are, therefore, answered in terms that respondent No. 1 is not the sole and exclusive owner of the suit property and is not entitled to relief of eviction, possession, damages and mesne profits against the appellant.

In the result, both the appeals deserve to be allowed by quashing the judgments and decrees of the trial Court rendered in Special Civil Suit Nos. 280/2002 and 368/2004. Specific performance of the contract is required to be directed in favour of the appellant. There is no need to grant the prayer of the appellant seeking permanent injunction against the respondent No. 1 as there is no evidence to show that he tried to take forcible possession of the suit property without recourse to law. In these terms the appeals deserve to be allowed.

Both the appeals are allowed.

Special Civil Suit No. 280 of 2002 is partly decreed. Specific performance of the contract dated 12.8.1994 is granted and the defendants are directed to execute the sale-deed of the suit property in favour of the plaintiff-Smt. Shalini Sukumar Nashine within a period of four months from the date of the order.

If the defendants fail to execute the sale-deed of the suit property within the time so given, the Court Commissioner be appointed and the sale-deed of the suit property be executed through him, in accordance with law.

The prayer of the plaintiff in Special Civil Suit No. 280 of 2002 for grant of permanent injunction is rejected.

Special Civil Suit No. 368 of 2004 is dismissed.

In the circumstances of the case, the parties to bear their own costs.