Tulsiram Soni vs Bihari Lal Dead And Ors

Ram Prasanna Sharma, J

This appeal is preferred under Section 96 of Code of Civil Procedure 1908 against the judgment and decree dated 2-5- 2001 passed by the First

Additional District Judge, Durg, (CG) in Civil Suit No.15-A/95 wherein the said court dismissed the suit filed by the appellant for specific performance

of contract regarding land bearing Survey No. 363/4 area 3.00 acres situated at village Bhilai-3.

In the present case, on 22-4-1992 appellant/plaintiff entered into an agreement with one Anand Singh Madharia for purchasing land bearing Survey

No.363/4 area 3.00 acres @ Rs.1,00,001/- per acre. The appellant paid earnest money for Rs.5,000/- and agreement was reduced in writing as per

Ex.P/1. Out of 3.00 acres, Anand Singh Madharia transferred 0.45 acres in favour of the appellant/plaintiff for consideration of Rs.18,000/- as per

Ex.P/2. After four months of execution of the sale deed (Ex.P/2), Anand Singh Madharia died leaving behind respondents/defendants as his legal

representatives. As the appellant was ready and willing to perform his part of contract, he served a registered notice dated 15-4-1995 (Ex.P/3) to the

respondents, but they did not respond to the same that is why he has filed the suit which was dismissed as mentioned above.

Learned counsel appearing for the appellant would submit that as per oral agreement between the parties, the appellant/plaintiff would purchase

0.45 decimal of land each time and same is established by execution of sale deed as per Ex.P/2, therefore, the finding arrived at by the trial Court that

there was no such oral agreement is without substance.

On the other hand, learned counsel appearing for the respondents supports the judgment/decree passed by the court below.

I have heard learned counsel for the appellants and perused the record in which judgment and decree passed by the court below.

As per evidence, the attesting witness of Ex.P/1 has not supported the version of the appellant that there was any oral agreement between the

parties to execute the sale deed for 0.45 acres at one point of time. Again there is no recital in agreement (Ex.P/1) that the land was sold for other

than agriculture purpose. If land was used for agriculture purpose and the same was sold for agriculture purpose, there was no requirement of any

permission by any authority before registration of the sale deed, therefore, it was always open for the appellant to execute the sale deed at once for

whole 3.00 acres of land during life time of Anand Singh Madharia, but the same was executed only having sufficient fund to execute the sale deed

for land area 0.45 acres and it appears that he was not having sufficient fund for executing the sale deed for remaining land.

From the agreement, it is clear that the same is entered into between the parties for a portion of land bearing survey No.363/4. It means, the sale

deed was for a portion of land, but no description is given in the same agreement (Ex.P/1). In view of this court, when any portion of land is to be sold

the boundary must be shown in the agreement and that portion must be shown in a map prepared for the whole land. Unless boundary is shown in the

agreement for contracted portion of land and map is attached, the contract cannot be specifically enforced in absence of specification of land. This

Court is of the view that decree for specific performance cannot be granted. As the portion of land was sold by Anand Singh Madharia during his life

time to the appellant/plaintiff, the same is partial performance of contract, therefore, earnest money which is paid to Anand Singh Madharia during his

life time who executed the sale deed in favour of the appellant/plaintiff is merged with consideration of the said sale deed. The grounds raised by the

appellant in appeal are not acceptable.

Considering all the facts and the material available on record, this court is of the view that the finding arrived at by the trial Court is based on proper

marshalling of evidence and the same is not liable to be interfered while invoking jurisdiction of this appeal.

Accordingly, the decree is passed against the appellant/plaintiff and in favour of respondents on the following terms and conditions.

i) The appeal is dismissed with cost.

ii) Parties to bear their own cost.

iii) Counsel fee, if certified be calculated as per certificate or as per Schedule whichever is less.

iv) A decree be drawn accordingly.