The land was in the name of one munishamappa, after his death the 2 children's sold the land to me, entered into a registered agreement of sale. at the time of agreement the khatha was in his father name. without transferring the khatha the sale agreement was executed. even after paying the full consideration and agreement period was 3 years they did not come for the the land. with repeated oral request since they did not come I filed a specific performance suit in the sr. Division court,Anekal. the defendants received and filed their return statement, de there after they did not come for hearing, cross examination or so, the court heard only my side, since the other side parties didn't come to court except return statement. on the basis of re3turn statement court ordered a partial decree. court considered the document is perfect payment made by me is agreed where there was delay in filing the suit, about 2 years delay The sr. Division court passed an order to pay the advance amount with 9% interest as barred by limitation act. Later I had approached the honorable district court there also the same order was uphold-ed Now I have approached the honorable high court for justice since I have paid the full consideration, The court is questioning that without the khatha in the sellers Children's name how one can buy the land, by asking this question court has not granted the injunction order's. hence I request you to suggest how we can get this clarify. 1. Is there any thing wrong entering to agreement for buying land. 2. Are there any ruling are available to prove our case to get the immediate remedy. 3. Otherwise what is the alternatives please suggest. Regards Venu saragur
It is necessary to peruse orders passed by trial court and high court to advice
2) suit for specific performance has to be filed within period of 3 years of refusal of seller to deliver possession / refund your money
3) if seller has failed to deliver possession nor refunded your money you ought to have taken legal proceedings at the earliest
4) khata has to be in name of seller then only should you have purchased the land
1. Any agreement of sell with purported seller of property not in his name is not enforceable. Even if buyer pays entire sale consideration.
2. Law is same for all and for all time. A person cannot sell which is not his.
3. The best option is recover the amount of consideration with interest.
1. The sellers should have clear and marketable tittle to sell the property or execute a registered sale deed in favor of the prospective buyer.
You have entered into the agreement of sale without ascertaining the title of the sellers to the property, therefore you have noticed the defective title, however the court has passed an order for return of the consideration amount paid by you long with interest.
You may file an execution petition to recover the money failing which you may seek to attach the said property towards security for the amount.
2. You may either contact your advocate to get you any citations based on the case in yor hand or look for one through internet because it is not known what are your grounds that have preferred the appeal in high court and the stage in which the appeal is pending.
3. See the first answer above.
in any chance in the high court the case can admit? any specific ground is there for admit? there was partition deed between the family members. after compromise these property fall in their share, at the time of partition the disputed property fall to their share is this help me to get benefits. can I fail a criminal suit i. e. cheating case
It depends on how your advocate presents the case before high court.
The main drawback in your case has been pointed out that the sellers do not have clear and marketable title to enter into a sale agreement to sell this immovable property to you.
The partition if happened after filing this suit then the status as on the date of filing the suit will prevail and not the subsequent development. The partition among the family members happened subsequently hence the court has rightly rejected your claim for specific performance of contract.
The criminal case could have been filed first before approaching the court praying for specific performance of contract.
Now no criminal complaint against them would be maintainable.
Is the partition deed registered
if so you can rely upon partition deed to prove that seller was absolute owner of land
you can file cheating case against seller under section 420 of IPC
Now you have a good case. Section 43 of Transfer of Property Act, 1882 will save the agreement. It is known as principle of “holding out.” If a seller holds out that he is owner of property and subsequently property comes to his share, he is bound to transfer as agreed. I am forwarding the provision for your benefit. 43. Transfer by unauthorised person who subsequently acquires interest in property transferred.—Where a person 1[fraudulently or] erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option. Illustration A, a Hindu who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorised to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B’s dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him.But you still have the hurdle of limitation.
Dear sir,
You can file case for fraud and cheating as the property was under dispute. If you can prove the fraudulent nature of the sale, or any concealment of fact during the sale, then you can claim for damages.
Thank you.
- As per law, Specific performance suit should be filed within a period of 3 from the date of agreement ,or from the date of knowledge of refusal /fraud .
- You should lodge a compliant against him for the offence of cheating and breach of trust , as he had not given you full details of the property .
- However, as the court has granted refund of entire paid amount by you, then you can file an Execution petition for getting recovery of that amount.
