S. KESARI HANUMAN GOUDversusANJUM JEHAN & ORS.

                        [2013] 2 S.C.R. 750


A                  S. KESARI HANUMAN GOUD
                                  v.
                      ANJUM JEHAN & ORS.
            (Civil Appeal Nos. 2885-2887 of 2005 etc.)
                          APRIL 10, 2013
B
         [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
                   IBRAHIM KALIFULLA, JJ.]

        CODE OF CIVIL PROCEDURE, 1908:
c
       s.96 read with 0. 41, r.31- First appeal before High Court
  challenging the judgment and decree passed in a suit for
  specific performance of agreement to sell - High Court holding
  that the plaintiff was not ready and willing to perform his part
0 of contract - Held: Finding recorded by High Court on this
  issue is perverse being contrary to evidence on record -
  Further, High Court while deciding the first appeal u/s 96, did
  not consider all the issues as is required under 0. 41, r.31 -
  Judgment and decree passed by High Court set aside and
E that passed by trial court restored - Appellant directed to
  refund the amount of compensation to first respondent along
  with 9% interest.

         0. 3, "· 1 and 2 - Recognized agent - Power of attorney
    holder - Held: It is a settled legal proposition that power of
F   attorney holder cannot depose in place of the principal - Nor
    can he depose for the principal in respect of a matter, as
    regards which, only the principal can have personal
    knowledge and in respect of which, the principal is entitled to
    be cross-examined.
G
        The appellant in C.A Nos. 2885-2887 of 2005 filed Suit
    No. 30 of 1984 against respondent no. 1 (defendant no.
    1) for specific performance of the agreement to sell
    entered into between the parties on 15.10.1977 and for
H                                750
  S. KESARI HANUMAN GOUD v. ANJUM JEHAN                   751


directing respondent no. 1 to execute a registered sale          A
deed in his favour ignoring the agreement to sell in
favour of respondents/defendants no. 3, 6 and 7 which
were entered into despite the public notice issued by the
plaintiff. It was the case of the plaintiff that he had always
been ready and willing to perform his part and it was the        B
first defendant who evaded to perform her part of the suit
agreement. Respondent/defendant no. 1 denied the plaint
allegation and stated that when the plaintiff failed to raise
necessary money, he informed her that she was at liberty
to sell the property to anyone. Respondent no. 3/                c
defendant no. 7 also filed Suit No. 135 of 1984 for
perpetual injunction restraining the plaintiff from
interfering with the construction of a theatre building
including the compound wall which was in close
proximity to his land. During the pendency of the suit           0
respondent no. 1 executed and got registered a sale deed
in favour of respondent no. 2/defendant no. 3 with
respect to a part of the suit property. Further, the GPA
holder also got registered another sale deed in favour of
respondent no. 2/defendant no. 3 with respect to a part
of the suit land. The trial court decreed the suit of the        E
appellant except for a small area which had been
purchased by defendant no. 6. The suit filed by
respondent no. 3/defendant no. 7 was also dismissed. In
the appeals preferred by both sides, the High Court Jleld
that the plaintiff-appellant was not ready and willing to        F
perform his part of contract. However, it held the plaintiff
entitled to get the sale deed execuited in respect of the
land excluding the land sold to defendants nos. 3, 6 and
7. Both the sides filed the appeals.
                                                                 G
    Disposing the appeals, the Court
    HELD: 1.1 The plaint contained a specific averment
that the plaintiff had always been ready and willing to
perform his part. In the written statement the said
                                                                 H
    752    SUPREME COURT REPORTS              [2013] 2 S.C.R.

A averment was simply denied. In the replication the
  plaintiff stated that he was capable of raising necessary
  finance. The appellant/plaintiff examined himself as PW.1,
  and in his cross-examination he has denied any
  suggestion made to him to the effect that he had ever
8 informed the power of attorney holder of respondent No.1
  that he would be unable to raise the balance of the sale
  consideration. With respect to the issue regarding
  financial capacity to pay, the appellant/plaintiff examined
  PW.2 and PW.3. They fully supported his case, deposing
c that he was a man of means, and that he had sufficient
  properties and the means to purchase the said suit
  property. The finding recorded by the High Court on this
  issue is perverse being contrary to the evidence on
  record. [para 8-12] [761-C-E;; 762-B-D; 763-A-B]
D      1.2 It is a settled legal proposition that the power of
  attorney holder cannot depose in place of the principal.
  Provisions of 0. 3, rr. 1 and 2 CPC empower the holder
  of the power of attorney to "act" on behalf of the
  principal. The term "act", would not include depos~ng in
E place and irislead of the principal. Similarly, the power-
  of-attorney holder cannot depose for the principal in
  respect of a matter, as regards which, only the principal
  can have personal knowledge and in respect of which,
  the principal is entitled to be cross-examined. [para 13]
F [763-C-F]
       Vidhyadhar v. Manikrao & Anr., 1999 (1) SCR 1168 =
  AIR 1999 SC 1441; Janki Vashdeo Bhojwani v. lndusind Bank
  Ltd., 2004 (6) Suppl. SCR 681 = (2005) 2 sec 217; MIS
G Shankar Finance and Investment v. State of A.P & Ors., 2008
  (10) SCR 905 =AIR 2009 SC 422; and Man Kaur v. Hartar
  Singh Sangha 2010 (12) SCR 515 = (2010) 10 SCC 512 •
    relied on.
     1.3 So far as the notice of the agreement between the
H appellant and respondent No. 1 is concerned, the trial
   S. KESARI HANUMAN GOUD v. ANJUM JEHAN                 753

court after taking note of the recital of the said agreement    A
in the agreement to sell.and sale deed also, has held, that,
so far as the land sold to the respondents other than
respondent no.6 is concerned, the parties had been fully
aware of the same. Only respondent no.6 had no such
notice. It has been conceded on behalf of the appellant         B
that the same being a very small area, the appellant is not
willing to disturb the possession of respondent no.6.
(para 14] (763-G-H; 764-A]

     2.The judgment and decree passed by the High Court
is set aside, and that passed by the trial court is restored.   C
As a consequence, the appellant is entitled to get the sale
deed executed and registered, with respect to all the suit
land available (minus the land acquired and the land
purchased by respondent no.6). The appellant is directed
to refund the amount of compensation to respondent no.          D
1 along with 9% interest. [para 16-17] [764-D-E]
                    Case Law Reference:
    1999 (1) SCR 1168             relied on       para 13
                                                                E
    2004 (6) Suppl. SCR 681       relied on       para 13
    2008 (10) SCR 905             relied on       para 13
    2010 (12) SCR 515             relied on       para 13
                                                                F
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2885-2887 of 2005.

    From the Judgment and Order dated 10.06.2003 of the
High Court of Judicature Andhra Pradesh in C.C.C. Appeal
Nos. 34, 33 of 1991 and 92 of 1993.                             G

                           WITH
C.A. Nos. 2888 and 4459 of 2005.
       '
    Anoop G. Chaudhari, A.T.M. Rangaramanuj_am, P. Vinay        H
    754      SUPREME COURT REPORTS                  [2013] 2 S.C.R.


A   Kumar, Vijay Prakash, Sohan Singh Rana, Bindra Rana,
    Vikrant Rana, Piyush Kumar (For S.S. Rana & Co.), Vishal
    Yadav, R. Santhan Krishnan, Praveen Kumar Pandey, Aditya
    A., D~ Mahesh Babu, A.V. Rangam, Richa Bharadwaja, Abhijit
    Sengupta for the Appearing Parties.
B
          The Judgment of the Court was delivered by

          DR. B.S.CHAUHAN, J.

    Civil Appeal Nos. 2885-2887 of 2005
c       1. These appeals have been preferred against the
   judgment and order dated 10.6.2003 by the High Court of
   Judicature, Andhra Pradesh at Hyderabad in C.C.C.A. Nos.34
 . and 33 of 1991 and C.C.C.A.No. 92of1993, by way of which
   the appeals filed by the respondents against the common
D judgment and decree dated 22.3.1991, in O.S. No.30of1984
   and O.S. No.135 of 1984, passed by the court of the Additional
   Chief Judge, City Civil Court, Hyderabad, have been partly
   allowed, by modifying the said judgment and order of the trial
   court.
E
         2. Facts and circumstances giving rise to these appeals
    are that:

         A. The appellant/plaintiff was carrying on business prior to
F   1.1.1978 in the appurtenant land as a tenant, and had made
    an offer to purchase the said premises, alongwith two other
    premises belonging to the landlady Ms. Anjum Jehan -
    respondent No.1 /defendant No.1 (hereinafter referred to as
    'Res.No.1').

G      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
H to sell, provided that the sale deed was to be executed within
   S. KESARI HANUMAN GOUD v. ANJUM JEHAN                          755
             [DR. B.S. CHAUHAN, J.]

a period of six months from the date of agreement, or upon                A
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             B
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         C
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
      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 Povver of Attorney (hereinafter
referred to as the 'GPA'), that had been executed by her:
                                                                          E
     E. Instead of executing the sale-deed in favour of the
appellant/plaintiff, Res. No.1 tried to sell the suit property to other
persons. Therefore, the appellant/plaintiff got a public notice
published in local newspapers on 29.4.1980 and 30.4.1980, in
respect of the suit property, stating that an agreement to sell           F
had been executed between the parties as regards the said
land, and that therefore, no other person mustpurchase the
same.

     F. Despite the said notice, the GPA holder of Res. No.1
entered into two different agreements to sell with respondent             G
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                      H
    756      SUPREME COURT REPORTS                    [2013] 2 S.C.R.


A   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
8
    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.

C      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 ad measuring 260 square
  yards, and the recital of the sale deed acknowledged the
D agreement between the appellant/plaintiff and Res. No.1.

         J. The GPA holder registered another sale deed in favour
    of respondent no.2/defendant no. 3 on 30.4.1985, with respect
    to the suit property admeasuring 260 square yards.
E        K. The trial court, vide judgment and decree dated
    22.3.1991 decreed the suit of the appellant/plaintiff except for
    a small area admeasuring 65 square yards, which had been
    purchased by defendant no.6 (represented by Lrs. defendant
    nos.6 to 1O}, observing that the said defendant had no
F   knowledge of any agreement to sell between the appellant/
    plaintiff and Res. No.1. The trial court also dismissed Suit
    No.135 of 1984 that had been filed by respondent no.3/
    defendant No.7 (K.Y. Rajaiah}.

G        L. The appellant/plaintiff was directed to deposit the
    balance consideration amount in the trial court within a period
    of four weeks, and the same was duly deposited by the
    appellant/plaintiff on 6.4.1991.

          M. Both sides preferred appeals before the High Court,
H
   S. KESARI HANUMAN GOUD v. ANJUM JEHAN                         757
             [DR. B.S. CHAUHAN, J.]
and all the appeals were disposed of by a common judgment                A
dated 10.6.2003, as referred to hereinabove.

     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            B
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          C
of Rs. 750/- per square yard, adjusting the amount that had
already been paid.

     0. Res.No.1 filed a Review Petition before the High Court.
During the pendency of the said review petition, both the sides          D
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.
                                                                         E
     Hence, these appeals.

     3. Shri Anoop G. Chaudhari, learned senior counsel
appearing on behalf of the appellant/plaintiff, has submitted that
the High Court, while dealing with the first appeal, has decided
the same under Section 96 of the Code of Civil Procedure,                F
1908 (hereinafter referred to as 'the CPC'), giving strict
adherence to Order XU Rule 31 CPC, and thus that it ought to
have dealt with each and every issue, and appreciate all the
evidence on record. It was under an obligation to record
findings on each issue separately. The High Court has                    G
committed an error in appreciating the evidence on record, and
coming to the conclusion that the appellant/plaintiff was not
ready and willing to perform his part of the contract, as the
appellant/plaintiff had in fact been issuing public notices, with
the intention of making other people aware of the fact that they         H
    758     SUPREME COURT REPORTS                  [2013) 2 S.C.R.


A must not indulge in any kind of transaction in respect of the suit
  property, as the same belonged to him. He also had the
  financial capacity to pay, which stood proved by the fact that
  within a period of three weeks from the date of judgment and
  decree of the High Court, he deposited the entire amount.
B Furthermore, the High Court ought to have appreciated the
  evidence on record, with respect to whether the other
  defendants/subsequent bonafide purchasers had purchased
  the land without notice. Merely saying that the same was not
  necessary, would mean that the court itself has violated the
c mandate of Order XU Rule 31 CPC. Res.No.1 (Ms. Anjum
  Jehan) never appeared in the witness box and never filed a
  written statement. The same was filed by her GPA holder. The
  said GPA was in respect of various other properties, and the
  GPA holder was not authorised to pursue suits in respect of
  the suit property. Under no circumstance is the GPA holder
0
  competent to enter the witness box and to give evidence as a
  substitute for the original party. Thus, the appeals deserve to
  be allowed, and the judgment and decree of the High Court, is
  liable to be set aside.

E      4. Per contra Shri A.T.M. Rangaramanujam, Senior
  Advocate, Shri R. Anand Padmanabhan, Shri Sohan Singh
  Rana and Shri A.V. Rangam, learned counsel appearing on
  behalf of the respondents, have opposed the appeals
  contending that the High Court has appreciated the evidence
F on record and has reached the correct conclusion. The findings
  of the fact recorded by the High Court are based on evidence,
  and do not warrant any interference by this Court. The appellanV
  plaintiff, has not furnished any explanation for the delay, as he
  was duly informed by Res. No.1 of the fact that she had
G obtained the required sanctions/permissions. Had the
  appellanVplantiff been in a position to perform his part of the
  contract, he could not have waited for a period of more than 4
  years to file the suit. During the pendency of the cases, a part
  of the suit land stood acquired for widening the road. The
H appellant without having any title over the land, has claimed and
   S. KESARI HANUMAN GOUD v. ANJUM JEHAN                      759
             [DR. B.S. CHAUHAN, J.]
withdrawn a huge amount of compensation unauthorisedly/              A
fraudulently. Thus, the appeals are liable to be dismissed.

     5. We have considered the rival submissions made by the
parties, and perused the record.

   6. The trial court, after appreciating the evidence on record     B
came to the following conclusions:

      Q     The evidence adduced on behalf of the defendants
            does not conclusively establish their plea to the
            effect that the plaintiff himself had cancelled the      c
            agreement to sell {Ex.A-1), in view of his inability
            to pay the balance of the sale consideration.

      II)   The plaintiff had the capacity to raise and pay the
            balance of the sale consideration under Ex.A-1.
                                                                     D
            Thus, the plaintiff was ready and willing to perform
            his part of the contract.

      HQ    There were inconsistent versions with regard to the
            extent of the land alleged to have been sold to
            defendant nos.3 and 7.                                   E

      IV)   The plaintiff had paid the amount towards non-
            agricultural assessment tax and property tax for the
            suit property.

     V)     The plaintiff had not rescinded the suit contract, and   F
            had not informed the first defendant that he was not
            in a position to complete the sale transaction, and
            that therefore, defendant no.1 was at liberty to sell
            the suit land to any other person, as has been
            contended by defendant no.1                              G

     VI)    Defendant nos.3 and 6 were subsequent
            purchasers for consideration without notice.
            Defendant no.6 is a bonafide purchaser for value,
            without notice of the agreement to sell {Ex.A-1).        H
    760      SUPREME COURT REPORTS                   [2013) 2 S.C.R.

A       7. The High Court while deciding the first appeal filed
  under Section 96 CPC, did not consider all the issues as is
  required under Order XU Rule 31 CPC. On the other hand, it
  dealt with only one issue elaborately, without making any
  reference to the pleadings taken by the parties. The High Court
B held:

          (i) No steps were taken by the appellant/plaintiff in
          establishing his readiness and willingness to perform his
          part of the contract.
c         (ii) Only a nominal sum was paid by the appellant/plaintiff
          in 1977 and till the date that the suit was filed, no effort
          was made by the appellant/plaintiff to pay the balance
          amount.

D         (iii) There has been inordinate delay on the part of the
          appellant/plaintiff in filing the suit. Had he been ready and
          willing, he ought to have approached the court at the
          earliest.

          (iv) As per the evidence of defendant no. 7, the power of
E         attorney holder (DW.1 ), did not call the appellant/plaintiff
          and ask him to get the sale deed executed, in pursuance
          of agreement dated 15.10.1977. The appellant/plaintiff
          expressed his inability to get the sale deed executed as
          he had no ready cash.
F
          {v) There was no requirement in law to obtain permission
          for separate sub-division and thus, Res.No.1 was not
          required to obtain any such sanction. Furthermore, the said
          property had already been sub-divided, and bore different
G         numbers.

          (vi) Res. No.1 had obtained the requisite permission from
          the Urban Land Ceiling Authorities in December 1977,
          and the appellant/plaintiff had handed over the draft sale
          deed to Res. No.1.
H
  S. KESARI HANUMAN GOUD v. ANJUM JEHAN                         761
            [DR. B.S. CHAUHAN, J.]
    (vii) It was because the appellant/plaintiff was not willing        A
    and ready to perform his part of the contract, and was
    resorting to dilatory tactics, that Res. No.1 had entered into
    two agreements to sell with respondent nos.3 and 7.

    (viii) In view of the above, there was no occasion to               8
    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.
                                                                        c
    8. The plaint contained a specific averment in paragraph
7 as under:

    ''The plaintiff is and had always been ready and willing to
    perform his part of the suit agreement and it is the first          D
    defendant, who evaded to perform her part of the suit
    agreement and finally committed to refusal of the terms of
    the suit agreement amounting to refusal on her part to so
    perform her part of the suit agreement."

     9. In the written statement, Res. No. 1 simply denied the          E
said averment, and further averred that:

    "The allegation in para 7 of the plaint that the plaintiff wa·s
    always ready and willing to perform his part of the suit
    agreement being incorrect is denied. The allegation that            F
    the defendant committed breach of the agreement and
    failed to perform her part of the agreement being incorrect
    is denied. The Defendant submits on the contrary that the
    plaintiff failed to perform his part of the agreement thereby
    committed a breach of the agreement The Defendant,                  G
    submits that the Defendant performed her part of the
    agreement and was ready to perform her part of the
    agreement, It is submitted that finally when the plaintiff failed
    to raise necessary money towards the sale price plaintiff
                                                                        H
    762      SUPREME COURT REPORTS                  [2013] 2 S.C.R.


A         informed the Defendant that she/is at liberty to sell the
          property to anyone."

        10. A replication was filed by the appellant/plaintiff under
    Order VIII Rule 9 CPC, wherein it has been submitted in
    paragraph 6 thereof as under:
8
          "The plaintiff is a big businessman having a business
          turnover of more than 5 lakhs per year. He is always
          capable of providing and raising the necessary finances
          to complete the sale transaction"
c
       11. These are the only pleadings taken by the parties so
  far as the issue of readiness and willingness to perform part
  of the contract by the appellant/plaintiff is concerned. The
  appellant/plaintiff examined himself as PW.1, and in his cross-
D examination he has denied any suggestion made to him to the
  effect that he had ever informed the power of attorney holder
  of Res. No.1, namely, Shri S.S. Noor Ali, that he would be
  unable to raise the balance of the sale consideration. Nor he
  had ever told defendant no. 7 that he wanted to sell the
E agricultural land to raise money to purchase the suit property.
  No question was put to him in the cross-examination, in
  response to which he could establish that he was a man of
  means, which he has thus stated in the replication, though he
  has admitted that he has certain outstanding dues towards the
  bank. He has denied the suggestion that he had neither a
F house, nor agricultural land, and that he had no capacity to pay
  the sale consideration, and further, that he had falsely deposed
  in respect of the same.

        12. The allegation made in the written statement stating
G that the appellant/plaintiff had told Res. No. 1 that she was free
  to sell the land, was not established by leading any evidence.
  Additionally, Res. No. 1 lives in the USA. It is nobody's case
  that the appellant/plaintiff had any communication with her. It was
  not mentioned in the averments raised in the written statement,
H that she had been informed anyone of the same through the
   S. KESARI HANUMAN GOUD v. ANJUM JEHAN                       763
             [DR. B.S. CHAUHAN, J.]
power of attorney holder. Further, with respect to the issue          A
regarding financial capacity to pay, the appellant/plaintiff
examined K. Narayana Reddy (PW.2) and Laxman Gore
(PW.3). They fully supported his case, deposing that he was a
man of means, and that he had sufficient properties and the
means to purchase the said suit property.                             B

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

     13. It is a settled legal proposition that the power of
attorney holder cannot depose in place of the principal.              C
Provisions of Order Ill, Rules 1 and 2 CPC empower the holder
of the power of attorney to "act" on behalf of the principal. The
word "acts" employed therein is confined only to "acts" done
by the power-of-attorney holder, in exercise of the power
granted to him by virtue of the instrument. The term "acts",          D
would not include deposing in place and instead of the
principal. In other words, if the power-of-attorney holder has
preferred any "acts" in pursuance of the power of attorney, he
may depose for the principal in respect of such acts, but he
cannot depose for the principal for acts done by the principal,       E
and not by him. Similarly, he cannot depose for the principal in
respect of a matter, as regards which, only the principal can
have personal knowledge and in respect of which, the principal
is entitled to be cross-examined. (See: Vidhyadhar v.
Manikrao &Anr., AIR 1999 SC 1441; Janki Vashdeo Bhojwani              F
v. lndusind Bank Ltd., (2005) 2 SCC 217; MIS Shankar
Finance and Investment v. State of A.P & Ors., AIR 2009 SC
422; and Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC
512).

      14. So far as the notice of the agreement between the           G
appellant and Res. No. 1 is concerned, the trial court after taking
note of the recital of the said agreement in the agreement to
sell and sale deed also, has held, that, so far as the land sold
to respondents other than respondent no.6, the parties had
been fully aware of the same. Only respondent no.6 had no such        H
    764    SUPREME COURT REPORTS                [2013] 2 S.C.R.

A notice. Shri A. G. Chaudhari, learned senior counsel appearing
  on behalf of the appellant, has submitted that the same being
  a very small area, the appellant is not willing to disturb the
  possession of defendant no.6.

      15. In the facts and circumstances of the case, as the
8
  appellant has not yet acquired any title over the land, he has
  no right to receive compensation to the tune of Rs.
  29,47, 112/-. However, he withdrew the said amount by giving
  an undertaking to return the said amount to Res. No. 1 in case
C any such order was passed by the court in this regard.

       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
D 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
E 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

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

    R.P.                                 Appeals Disposed of.