B.P. Dharmadhikari, J.@mdashThe facts which are not in dispute are that earlier there was a agreement dated 5-12-1980 executed by the landowners/respondents No. 3 to 13 in the present second appeal in favour of appellant No. 1 (deceased) for sell of one acre of portion out of total 1.40 hectares of agriculture land at Mouza-Mahadula, Tah. Kamptee, District Nagpur. It is also admitted that the said portion of one acre was not identified or specified. On 20-12-1981, deceased-appellant No. 1 had entered into another agreement with landowners for very property. In the earlier agreement One Mohd. Umar was with him as proposed purchaser. In the later agreement present respondents 1 and 2 were with deceased appellant No. 1 as proposed purchasers. However, on 19-11-1982, deceased-appellant No. 1 had obtained a sale deed from the landowners in the name of himself and his wife. Thereafter, the present respondents 1 and 2 filed Special Civil Suit No. 50/1983 before the Civil Judge, Senior Division, Nagpur, joined appellant No. 1, his wife and landowners as party defendants. They claimed specific performance of the later agreement dated 20-12-1981 and also prayed for cancellation of sale deed dated 19-11-1982 obtained by deceased appellant No. 1 and his wife. They also claimed partition and separate possession of one acre of portion agreed to be purchased as per agreement dated 20-12-1981. The suit came to be decreed and the first appeal i.e. registered as Regular Civil Appeal filed u/s 96 of CPC bearing No. R.C.A. No. 482/1986 came to be dismissed by 14th Additional District Judge, Nagpur. In the present second Appeal the deceased appellant No. 1 and his wife have challenged those judgments and decrees. The appellant No. 1 has expired during the pendency of the second appeal and his LRs are brought on record. Similarly, respondent Nos. 2 and 5 also expired and their LRs. have been brought on record.
2. This Court while admitting second appeal on 1st July, 1991 has treated that ground Nos. 2, 3 and 5 as pleaded in the Memo of Appeal as the substantial questions of law for adjudication and granted status quo in relation to possession.
3. In this background, I have heard Shri P. N. Kothari, learned Counsel for the appellants and Shri U, P. Deopujari, learned Counsel for respondent No. 1 and LRs of respondent No. 2. Nobody appears for other respondents, though they are served. Both the counsel jointly stated that other respondents were proceeded ex parte, even before the lower Courts.
4. Advocate Kothari, at the outset, has invited attention to the order dated 1-10-1992 passed by this Court on pursis (st.) No. 15164/1992 whereby the appellant while communicating the death of respondent No. 13, sought exemption from bringing his LRs of respondent No. 13 on record. This Court has by the said order directed that the pursis shall be considered at the stage of final hearing.
5. Advocate Kothari, further contends that Mohd. Umar ought to have been joined as party defendant by respondents 1 and 2 in their Civil Suit and since that has not been done, the suit could not have been decreed. His arguments are only confined to ground No. 5 and he contends that in view of Section 15 of the Specific Relief Act, the appellants were justified in falling back on agreement dated 5-12-1980 and seeking its specific performance. He also relied upon the judgments reported in AIR 1937 Nag 186 Jagdeo Singh and Ors. v. Bisambhar and Ors. and
6. Advocate Mr. Deopujari on the other hand has not seriously disputed this and contends that it was not necessary to bring on record the LRs of respondent No. 13. He invited my attention to Section 22 of the Specific Relief Act to contend that law permits respondents 1 and 2 to seek relief of partition and he states that looking to the peculiar facts of the case at hand, respondents 1 and 2 had appropriately made a prayer for partition and after considering the facts, the prayer for partition has been rightly granted. He further states that it is original owners who have to oppose said prayer for partition and as the prayer has not been opposed by them, it has to be held that such prayer cannot be opposed by the present appellants, who are only purchasers from the original owners and his sale deed has been invalidated.
7. He further invites attention to the finding on record and also cross-examination of Vendor-Mukundrao, where Mukundrao stated that the agreement dated 5-12-1980 executed by him in favour of deceased appellant No. 1 and Mohd. Umar was cancelled and a fresh agreement dated 20-12-1981 was then entered into between him and deceased appellant No. 1 on one hand and the present respondents 1 and 2 on the other. In his cross-examination, he admitted that the amount of consideration paid as advance towards agreement dated 5-12-1980 was not returned by him, but was adjusted towards agreement dated 20-12-1981. He, therefore, contends that what survived after this is agreement dated 20-12-1981 as the earlier agreement dated 5-12-1980 was extinguished. He contends that in such circumstances, sale deed dated 19-11-1982 obtained by appellant No. 1 and his wife could not be traced back to agreement dated 5-12-1980 and the said sale deed rightly has been ordered to be cancelled by the Courts below. He contends that the provisions of Section 31 of the Specific Relief Act are very much applicable in the facts of present case and, therefore, decree as granted needs to be maintained. According to him, no substantial questions of law arises in this second appeal.
8. The question which arises from arguments is, whether in view of agreement dated 20-12-1981 between parties, earlier agreement dated 5-12-1980 would survive? It is to be noted that Mohd. Umar was party purchaser with deceased appellant No. 1 in agreement dated 5-12-1980. He was not party purchaser in subsequent agreement. Not only this Mohd. Umar has not questioned the sale deed dated 19-11-1982 obtained by the deceased appellant No. 1 and his wife. In the facts and circumstances, the contention of Advocate Kothari that Mohd. Umar was necessary party to the civil suit, is without any substance.
9. It is apparent that deceased appellant No. 1 with open eyes again agreed to purchase the very same property from the very same vendor, but substituted Mohd. Umar by respondents 1 and 2, while entering into subsequent agreement dated 20-12-1981. This conduct, therefore, clearly implies his decision to substitute and replace earlier agreement dated 5-12-1980. Such substitution or replacement of earlier agreement is also corroborated by the evidence of original vendor-Mukundrao. In the facts and circumstances, it is clear that the deceased appellant No. 1 could not have, after agreement dated 20-12-1981, contended that agreement dated 5-12-1980 was still available to him and he could have invoked Section 15 of the Specific Relief Act to file a suit for seeking its specific performance. I, therefore, find that the sale deed dated 19-11-1982 could not have been obtained by him by ignoring said agreement dated 5-12-1980. The deceased-appellant No. 1, was very much aware about the subsequent agreement dated 20-12-1981 which he entered into by joining hands with present respondents 1 and 2 and agreed to purchase the property from the original vendor-Mukundrao. It is, therefore, clear that his conduct of entering into agreement dated 20-12-1981 is nothing but inconsistent conduct with his contention that agreement dated 5-12-1980 survived even after the agreement dated 20-12-1981. He also got earnest paid to vendor in agreement dated 5-12-1980 adjusted towards the later agreement. Both these situations cannot stand together. The finding recorded by the Courts below in this respect does not call for any interference.
10. The judgments reported in Jagdeo Singh and Ors. v. Bisambhar and Ors. (supra) and Smt. Nirmala Bala Dasi and Anr. v. Sudarsan Jana and Ors. (supra) permit one or more co-contractors to file a suit seeking specific performance. There cannot be any debate over this proposition. The present respondents 1 and 2 were and are co-contractors with deceased appellant No. 1 and his wife insofar as the fresh agreement dated 20-12-1981 is concerned and accordingly they filed suit for specific performance, after realising that the vendors have not abided by the said agreement and have executed sale deed dated 19-11-1982 in favour of deceased-appellant No. 1 and his wife. I, therefore, find that the suit for specific performance filed by the present respondents 1 and 2 cannot be said to be improper. In view of provisions of either Sections 15 or Section 31, on the basis of sale deed dated 19-11-1982 obtained by the deceased appellant No. 1 and his wife, they cannot contend that they have established title and interest in immovable property. It is therefore apparent that the rights of present appellants to seek specific performance of agreement u/s 15 of the Specific Relief Act flowing from agreement dated 5-12-1980 was extinguished because of subsequent agreement and in any case, the sale deed in their favour was voidable. I, therefore, find that in view of Section 31 of the Specific Relief Act, the present respondents 1 and 2 were entitled to seek relief of declaration of cancellation of the said sale deed.
11. Insofar as right of relief of partition is concerned, Section 22 of the Specific Relief Act, permits relief for partition and separate possession to be asked for by respondents 1 and 2. In the present case deceased appellant No. 1 and his wife had turned around and they wanted to defeat the agreement dated 20-12-1981 and in fact obtained a sale deed exclusively in their favour. It is apparent that the appellants and respondents could not have come together in such matter. Not only this after having the sale deed, respondents 1 and 2 could not have continued together with him. In the facts, it cannot be said that respondents 1 and 2 had no reason to seek relief of partition and separate possession. It is no doubt true that relief sought for is in relation to entire one acre land which they agreed to purchase. However, they were joint purchasers as per agreement dated 20-12-1981 and one of them i.e. deceased appellant No. 1 was opposing relief in favour of respondents 1 and 2. In the face of this situation, the trial Court has correctly granted relief of partitioning 2/3rd share in favour of respondents 1 and 2.
12. It is further clear that the agreement on which the deceased appellant No. 1 or the present appellants rely also provided for purchase of only joint undivided portion of one acre agriculture land. In the facts and circumstances, the appellant cannot contended that any prejudice is caused to them because of the decree for partition. The original vendor did not take such defence though they had noticed on prayer for partition. Mukundrao-original vendor was examined as witness of deceased appellant No. 1.1 find that grant of decree for partition also cannot be held to be bad in the facts of the present case.
13. The judgment Hon''ble Apex Court on which Mr. Kothari has placed reliance is delivered in totally different facts. There one of the joint owners had only agreed to sell such joint property and the other co-sharer had not joined in that agreement, the Hon''ble Apex Court has found that to the extent of his share such co-owner or joint owner is open to execute the sale deed. It is further noticed that in the absence all co-sharers, there could not be any decree for any specific part of the property to be partitioned and for delivery of possession. In the present case, the other co-sharers were parties before the Civil Court, but they have not appeared to oppose prayer for partition. The judgment of Hon''ble Apex Court is, therefore, not applicable in the facts and circumstances of this case.
Therefore, I find that no substantial questions of law arise in this second appeal. The second appeal is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
