CFA 96/87 Radhey Shyam Vs. Lacchi Ram & Ors. (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur J U D G M E N T In S.B. Civil First Appeal No.96/1987 Radhey Shyam Vs. Lacchi Ram and others Date Of Judgment :: 5th November, 2009 Hon'ble Mr. Justice Jitendra Ray Goyal Mr. H.R. Kumawat, for appellant. Mr. B.L. Agrawal, for respondents. .......... By The Court :- This is plaintiff's first appeal under section 96 of the Code of Civil Procedure filed against the judgment and decree dated 18/2/1987 passed by Additional District Judge No.2, Jaipur City, Jaipur in Civil Suit No.115/1977 whereby plaintiff's suit for specific performance of the contract and injunction has been dismissed and a decree has been passed in the manner that plaintiff would be entitled to recover the amount of Rs.5480/- from the defendants which was advanced by him in lieu of the agreement to purchase the disputed lands. 2. The controversy involved in the present matter in nut shell is that plaintiff filed a suit against the defendants for specific performance of the contract and injunction, on account of non-performance of the agreement dated 19/7/1972 which was entered into in CFA 96/87 Radhey Shyam Vs. Lacchi Ram & Ors. (2) between the plaintiff and defendants no.1 & 2 and according to the plaintiff he paid Rs.5480/- to defendants no.1 & 2 at the time of agreement to purchase the disputed lands and possession of the disputed lands was handed over to him and he was always ready and willing to perform his part of the contract but the defendants did not hand over the title deeds of the lands in question nor they executed the agreement and contrary to this the defendants no.1 & 2 entered into agreement to sell the disputed lands to defendants no.3 to 6, whereas according to the defendants no.1 & 2 they were always ready and willing to perform their part of the contract and they, many times asked the plaintiff for execution of the agreement but the plaintiff never turn up and on account of decrease in the price and due to change in existing government policy the defendants were compelled to sell the disputed lands to other defendants no.3 to 6, however the defendants no.1 & 2 admitted the agreement to sell dated 19/7/1972 which was entered into defendants no.1 & 2 and the plaintiff. 3. On the basis of the pleadings of the parties, issued were framed and the learned trial court after recording the evidence and hearing the parties and taking into consideration entire facts and circumstances dismissed the plaintiff's suit and a decree was passed in CFA 96/87 Radhey Shyam Vs. Lacchi Ram & Ors. (3) favour of the plaintiff to the extent of Rs.5480/- which he advanced to the defendants no.1 & 2 at the time of agreement to sell the disputed lands. Hence, this first appeal by the plaintiff. 4. Heard learned counsel for the parties and perused the impugned judgment and other material available on the record. 5. It was inter alia contended that trial court has committed error in not granting the decree for specific performance of the contract specially when the defendant has admitted the fact of agreement in between the parties. It was then submitted that appellant-plaintiff was always ready and willing to perform his part of the contract but defendants no.1 and 2 deliberately did not hand over the title deeds of the disputed properties and also did not take steps for removing the electricity polls from the land in question. It was next submitted that trial court has erred in holding that defendants no.3 to 6 were bonafide purchasers for value without notice. It was further submitted that the agreement was for residential plots, therefore, the provisions of section 42 of the Tenancy Act do not apply in this matter. 6. Learned counsel for the respondents submitted that plaintiff-appellant was reluctant to pay the remaining amount and purchase the property in question CFA 96/87 Radhey Shyam Vs. Lacchi Ram & Ors. (4) because of decrease in the price and government policy at the relevant time. It was then submitted that in order to save from the losses respondent-defendants no.1 and 2 sold the property in question to the defendants no.3 to 6. It was further submitted that respondents no.3 to 6 are the bonafide purchasers for value without notice and even according to the plaint, they raised the construction over the disputed land and it has been admitted by the plaintiff in his evidence that he did not object at the time of said construction, therefore, the trial court has rightly dismissed the suit for specific performance of the contract and decreed the suit to the extent of money advanced by the plaintiff to respondent-defendants no.1 and 2. 7. I have considered the rival submissions made at the bar. It is admitted case of the plaintiff- appellant that respondent-defendants no.3 to 6 had purchased the disputed plots in the year 1973-74 and they raised the construction thereupon in the knowledge of the plaintiff. The plaintiff admitted that he did not report to the police against defendants no.4 & 5 in regard to the possession over the disputed lands. Plaintiff in his cross- examination also admitted that he did not inform to the defendant in writing that he is prepared to pay the remaining amount. Further more plaintiff-appellant could not prove and nowhere stated that defendants no.3 to 6 CFA 96/87 Radhey Shyam Vs. Lacchi Ram & Ors. (5) who purchased the disputed land from defendants no.1 and 2 were in knowledge that there was an agreement in between plaintiff and defendants no.1 and 2 in regard to same piece of land and contrary to this it has amply been proved by the defendants that defendants no.3 to 6 are the bonafide purchasers for value without notice. In view of these proved facts, in my considered view the trial court has not committed any error in granting the money decree instead of granting the decree for specific performance of the contract. Therefore, this appeal deserves to be dismissed. 8. Consequently, this appeal is hereby dismissed. (J.R. Goyal),J. VS Shekhawat/- Jr. P.A. H4