S. Kesari Hanuman Goud vs Anjum Jehan & Ors

2. Facts and circumstances giving rise to these appeals are that:

B. The parties entered into an agreement dated 15.10.1977, for the sale of land admeasuring 1200 square yards situated at Musheerabad, Hyderabad, Andhra Pradesh, for a total consideration of Rs.1,70,070/-. Out of which a sum of Rs.25,000/- was paid as earnest money. The said agreement to sell, provided that the sale deed was to be executed within a period of six months from the date of agreement, or upon intimation by the vendor, as she had to obtain permission from the competent authority under Section 27 of the Urban Land Ceiling Act, 1976 (hereinafter referred to as `the Act 1976), the necessary income tax clearances and the sub division permission from the municipal corporation. The aforesaid suit land was also in the possession of the landlady, and had partly been occupied by defendant no. 2/respondent (Narsoji).

C. After the execution of the said agreement to sell, the appellant/plaintiff paid non-agricultural assessment tax. A legal notice dated 18.6.1979 was received by the appellant from Res. No.1 Ms. Anjum Jehan, stating that she had obtained requisite permission from the statutory authorities under the Act 1976, from the income tax authorities, and also from the sub-divisional authorities.

D. The appellant/plaintiff asked Res. No.1 vide letter dated 2.7.1979, to send the copies of the aforesaid permissions, as well as a copy of the General Power of Attorney (hereinafter referred to as the `GPA’), that had been executed by her.

F. Despite the said notice, the GPA holder of Res. No.1 entered into two different agreements to sell with respondent no. 2/defendant no.3 (K.S.R.Murthy) on 29/30.4.1980, for open land admeasuring 510 square yards.

G. The appellant/plaintiff filed a suit bearing O.S. No. 30 of 1984 on 23.6.1983 for specific performance of the agreement to sell dated 15.10.1977, directing the Res. No.1 to execute a registered sale deed in favour of the appellant/plaintiff, and ignoring the agreement to sell in favour of respondent/defendant nos.3, 6 and 7.

H. Respondent no.3/Defendant No. 7 (K.Y. Rajaiah) filed Original Suit No. 135 of 1984 on 27.12.1983, for perpetual injunction, restraining the appellant/plaintiff from interfering with the construction of a theatre building, including the compound wall of the same, which was in close proximity to his land.

I. During the pendency of these two suits, Res.No.1 executed a sale deed, and she got the same registered on 29.4.1985, in favour of respondent no.2/defendant no.3 with respect to the part of the suit property admeasuring 260 square yards, and the recital of the sale deed acknowledged the agreement between the appellant/plaintiff and Res. No.1.

N. The High Court held, that the appellant/plaintiff was not ready and willing to perform his part of the contract, thus, in view of the same, there was no occasion to decide issues regarding whether the subsequent purchasers were in fact, bonafide purchasers for consideration without notice of the agreement to sell between the appellant/plaintiff and Res. No.1. However, the court further held, that the appellant/plaintiff would be entitled to get the sale deed executed in respect of the said land, excluding the land sold to defendant nos.3, 6 and 7 at the rate of Rs.750/- per square yard, adjusting the amount that had already been paid.

O. Res.No.1 filed a Review Petition before the High Court. During the pendency of the said review petition, both the sides have preferred these appeals. The Review Petition filed by Res. No.1 stood dismissed vide order dated 20.2.2004. The said order is also under challenge before us in connected appeal Nos. 2888 and 4459 of 2005.

(viii) In view of the above, there was no occasion to examine the other issues, particularly those with respect to whether the other respondents were bonafide purchasers for consideration without notice, and the appeals were hence disposed of, as has been referred to hereinabove.

Thus, the finding recorded by the High Court on this issue is perverse being contrary to the evidence on record.

16. In view of the above, the appeals are allowed. The judgment and decree passed by the High Court is set aside, and the same passed by the trial court is restored. As a consequence, the appellant is entitled to get the sale deed executed and registered, with respect to all the suit land available now (minus the land acquired and the land purchased by the respondent no.6).

17. The appellant is directed to refund the amount of compensation received by him to Res. No. 1 within a period of three months, alongwith 9% interest from the date of receipt till the date of payment.

Civil Appeal Nos. 2888 and 4459 of 2005 In view of the judgment and order in Civil Appeal Nos. 2885-2887 of 2005, these appeals are dismissed.

April 10, 2013