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TMI Blog1998 (10) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... The suit OS No.69 of 1989 was initially filed against the defendants 1 to 7 only on 7-6-1989. Subsequently defendants 8 to 10 were impleaded as parties as per the order dated 30-9-1991 passed in IA No.1097 of 1991. OS No.87 of 91 is filed by the 7th defendant against the plaintiff for recovery of possession of the suit property and for damages for use and occupation. Both the suits were tried jointly. The lower Court decreed OS No.69 of 89 with costs as prayed for and dismissed OS No.87 of 1991 without costs. Hence these two appeals. AS No.2764 of 92 is against OS No.69 of 1989 whereas Trans Appeal AS No.277 of 95 is against OS No.87 of 1991. 3. The undisputed facts of the case arc that the suit property originally belonged to one Abdul Jaleel who leased it out to the plaintiff under a lease agreement dated 29-5-1984 (Ex.A 60) fora period of five years on a monthly rent of ₹ 100/-. The plaintiff was thus in occupation of the suit property as a tenant. Abdul Jaleel died on 26-8-1988. Even during his life time, Abdul Jaleel conveyed the suit property to his four sons i.e., defendants 4 to 6 and the father of defendants 1 to 3 under a registered sale deed dated 17-8-1987 (Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with defendants 1 to 7. The 7th defendant, in his turn, filed OS No.87 of 1991 against the plaintiff in OS 69 of 1989 for recovery of possession of the suit site along with the temporary structures therein and for damages for use and occupation at the rate of ₹ 300/- per month. 5. In OS No.69 of 1989 defendants 5 and 7 filed a written statement and also an additional written statement after the amendment of the plaint. The same were adopted by the other defendants. The defence is one of total denial of the alleged oral agreement of sale set up by the plaintiff. The defendants also disputed the financial capacity of the plaintiff to purchase the suit property. According to them, the plaintiff was heavily indebted and he was not in a position to pay the sum of ₹ 10,000/- by way of advance on 14-1-1989 as alleged. It is also pleaded that the 7th defendant is a bona fide purchaser for value without notice of the alleged oral agreement in favour of the plaintiff. 6. After framing appropriate issues and after a joint trial of both the suits, the trial Court decreed OS 69 of 1989 and dismissed OS 87 of 1991 holding that the oral agreement of sale put forward by the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... father of the mother of the plaintiff arc brothers. PW3 is a mason and the evidence of PW2 shows that the plaintiffs father (PW4) was also a mason. It cannot, therefore, be said that PWs.2 and 3 are totally disinterested and independent witnesses. 10. According to the plaintiff the agreement was concluded on 14-1-1989 at his shop at about 5.30 or 6.00 p.m. PW1 stated that there is no specific reason as to why he did not take a regular agreement of sale in writing or even a receipt for payment of advance of ₹ 10,000/-. Admittedly PW1 was in the habit of obtaining the signatures of his land-lord in the note book maintained by him (Ex.A44) whenever rents were paid to the landlord. If so, there is no reason why an agreement in writing or, at least, a receipt acknowledging payment of ₹ 10,000/- was not obtained. Not even the signature of D5 was obtained in the day-book in token of acknowledgment of the alleged payment of ₹ 10,000/-. The mere fact that the parties were known to each other for a long time and they had good relations, cannot be a valid explanation for not reducing the alleged agreement into writing. There is thus an inherent improbability surrounding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vince the Judge that there is such a probability of their occupancy as to make it reasonable for a prudent man to accept them. The law requires proof not only of account books generally but of each item that is in the interest of the person producing the books, but with regard to admissions i.e., entries against the producer's own pecuniary interest, the law dispenses with all proof, save, that the book has been kept by or under the authority of the producer. 11. For the aforesaid reasons, I am of the view that the said entries cannot be relied on by the plaintiff to prove the alleged payment of ₹ 10,000/- by way of advance. The lower Court, however, came to the conclusion that the plaintiff has sufficient financial capacity to purchase the property as he is carrying on business on an extensive scale, that he owns a lorry, that his wife owns about Acs.0.93 cents of land and that his father (PW4) also owns a buiding worth rupees three lakhs. Even granting that the plaintiff has sufficient financial capacity and resources generally, the question for consideration is whether on that particular date he had ₹ 10,000/- in cash on hand. When the specific case put forwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D5 and his brothers were present at the time of the settlement of the bargain. He did not mention the presence of defendants 1 to 3. As regards the subsequent mediation also, the evidence of PW 3 varies from that of PW2. The evidence of PWs.2 and 3 does not show that the agreement was entered into on behalf of all the brothers as pleaded in the plaint. The lower Court failed to properly appraise the oral evidence of PWs. 1 to 4 in the light of the aforementioned improbabilities and inconsistencies. It has accepted their ipsi dixit with a sweeping observation that there are no contradictions and infirmities or improbabilities in the evidence of PWs.1 to 4. The lower Court appears to have been swayed by some of the suspicious features surrounding the sale deeds Exs.B1 and B2 obtained by the 7th defendant like the feet that Ex.B2 sale deed was obtained after the exchange of registered notices, that the consideration mentioned in Ex.B1 was a penalty amount of ₹ 13,200/-whereas an equal extent of property was sold under Ex.B2 for ₹ 30,000 within six months and that false recitals were made in the two documents with regard to delivery of possession to the vendees whereas the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for the plaintiff to approach D8 to D10 or talk with them or enter into any contract with them and probably the plaintiff was not even aware about them. He therefore, contended that the agreement must be deemed to have been entered by defendants 1 to 6 on behalf of all the family members and as such defendants 8 to 10 are liable to execute the sale-deed along with defendants 1 to 7. The plaintiff, however, in his evidence as PW 1 deposed as follows: Dawood had three sons and two daughters. I enquired it while paying the advance. His wife also was available. In our community all the sons, all the daughters and widow are legal heirs. This clearly shows that the plaintiff had knowledge about the existence of defendants 8 to 10 and about their rights in the property. Yet he failed to enter into any agreement with them. Thus defendants 8 to 10 are not parties to the agreement pleaded by the plaintiff. As such they are not bound by the same. 14. In Mayawanti v. Kaushalya Devi, , the Supreme Court held as follows: .....In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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