JANAK DULARI DEVI Vs. KAPILDEO RAI

JUDGEMENT

(1.) Plaintiffs in a suit for specific performance, aggrieved by the judgment and decree of the Patna High Court dated 3.1.2002 dismissing his second appeal against the decision of the first appellate court dated 16.12.1997 dismissing their suit (in reversal of the judgment and decree of the trial court dated 27.8.1990 decreeing the suit) have filed this appeal by special leave.

(2.) The case of the Appellants in brief is as under: The second Respondent was the owner of the suit property. The second Respondent executed a sale deed dated 22.2.1988 (registered on 7.3.1988) in respect of the suit property in favour of the Appellants, for a consideration of Rs. 22000/-; that Rs. 17,000 was paid by the Appellants to the second Respondent, at the time of execution and registration of sale deed; that the balance of Rs. 5000 was to be paid subsequently, when the vendor requested for the said payment; that the second Respondent retained the registration receipt in regard to the sale deed, agreeing to deliver it to the Appellants against payment of the balance sale consideration; that on execution of the sale deed, by the second Respondent, his right, title and interest in the suit property passed to the Appellants and possession of the land sold was also delivered to them; that subsequently the second Respondent avoided receiving the balance of Rs. 5000 and failed to deliver the registration receipt; that the Appellants issued a legal notice calling upon the second Respondent to deliver the registration receipt so that they could collect the original registered sale deed, but the second Respondent send a reply denying the receipt of Rs. 17000 and stating that the entire consideration was due; and that therefore, it became necessary for the Appellants to file the suit. The Appellants sought a decree for a direction to the second Respondent to deliver the registration receipt relating to the sale deed dated 22.2.1988 by receiving the balance sale consideration of Rs. 5000 and that in case the second Respondent had already obtained the original sale deed from the office of the Sub-Registrar, then for a direction to deliver the same to the Appellant. The said suit was valued at Rs. 5000.

(3.) The second Respondent filed his written statement. He alleged that he had agreed to sell the property as he urgently required the money for celebrating the marriage of his daughter; that he executed and registered the sale deed on 22.2.1988; that the Appellant did not pay any part of the consideration and the allegation that he had paid Rs. 17000 towards the sale price at the time of execution of sale deed was false; that the Appellants had played a fraud upon him by stating in the deed that Rs. 17000 was already paid towards the sale price and making him to sign the sale deed without reading the deed; that when he demanded the sale price, as the Appellants stated that the sale consideration would be paid later, he retained the registration receipt and did not deliver possession; that it was the intention of parties that title in the property should pass to the Appellants and possession should be delivered, only on payment of the consideration of Rs. 22000 by the Appellants; that as the Appellants failed to pay the sale consideration, he cancelled the said sale deed dated 22.2.1988 on 18.3.1988 and sold the property to the first Respondent on 29.8.1988 for a consideration of Rs. 19000 and also delivered possession of the property to the first Respondent and ever since then the first Respondent is in possession of the suit property. He contended that as the title and possession remained with him even after execution and registration of the sale deed in favour of the Appellants, and as the sale price was not paid, he was justified in canceling/rescinding the sale and the Appellants were not entitled to any relief.