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PETITIONER: PIRTHI @ SANSI ETC.

       Vs.

RESPONDENT: JATI RAM & ORS. ETC.

DATE OF JUDGMENT:       30/07/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 SCALE  (5)804

ACT:

HEADNOTE:

JUDGMENT:                             AND       SPECIAL LEAVE PETITION (CIVIL) NO. 14275 OF 1996                          O R D E R      The petitioner,  Pirthi @  Sansi admittedly had entered into an  agreement or May 6, 1988 to sell 16 kanal 16 marlas of agricultural  land for a consideration of Rs.50,000/- per killa and  received a  sum of  Rs.24,000/- as earnest money. The respondent  filed a  suit for  specific  performance  in April 1993  against the  petitioner. It  was  his  plea  and accepted by  all courts that he was always ready and willing to perform  his part  of the  contract and  was willing  and ready to  pay the  balance consideration  or  Rs.  81,000/-. Accepting the  case  of  the  respondent,  the  trial  Court decreed the  suit. On  appeal, the Additional District Judge by his  judgment dated November 15, 1994 reversed the decree holding that  Ramesh and  others had come into possession of the land.  They were  in possession  of  the  land  and  the agreement came to be executed in their favour on December 5, 1994 after  the judgment  of the appellate Court. Therefore, the decree  for specific  performance  was  not  proper  and instead the  alternative relief of recovery and compensation was held  appropriate remedy.  In second  appeal,  the  High Court reversed the decree by the impugned judgment dated May 15, 1996  in R.S.A.  NO.425/95 and  restored the judgment of the trial Court.      Shri Mahabir Singh, learned counsel for the petitioner, contended  that   consideration  of  granting  for  specific performance is  a discretion  of the  court and  the  courts granting the decree for specific performance should exercise the discretion  on sound principles of law. The Court should grant alternative  relief instead  of  granting  decree  for specific  performance.   In  view  of  the  facts  that  the petitioner had  already inducted  third party  in possession and they  remained in  possession and also taking possession involves  further  litigation,  the  first  appellate  court rightly refused  to grant  specific  performance.  The  High

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Court committed  an error  of law in reversing the decree of the  first   appellate  Court.  We  rind  no  force  in  the contention. It  is an  admitted fact  that Ramesh and Shashi Kapoor, respondent  Nos.2 and  3 had  come  into  possession after the  suit was  instituted and  agreement to  sell  was entered into.  Therefore, the High Court rightly allowed the appeal holding  them to  be not  a bona  fide purchasers and directed decree  for specific  performance in  pursuance  of agreement to  sell dated  6.5.1988. If the contention of the respondents is given acceptance, no contract can be enforced and the party will seek to avoid contract by inducting third party into possession. Therefore the view taken by the first appellate Court  in that  behalf is  clearly illegal. Having regard to  the fact that respondent Nos.2 and 3 are not bona fide purchaser and admittedly came into possession after the suit was  instituted and  the agreement was entered into the High  Court  has  rightly  rejected  their  contention.  The contention since  have come  into possession  the  suit  for specific performance  will be  an impediment in that behalf, bears no force      The special leave petitions are accordingly dismissed.