GAURI SHANKAR PRASAD Vs. BRAHMA NAND SINGH

JUDGEMENT

(1.) Appellants Second Appeal in terms of Section 100 of the Code of Civil Procedure, 1908 (in short the Code) having been dismissed by the Jharkhand High Court, this appeal has been filed. The Title Suit No. 17/92-49/93 was decreed by the learned Additional Munsif, Garhwa. The judgment and decree were upset by learned District Judge, Palamau in Title Appeal No.10 of 1997. Second Appeal was filed by the plaintiffs before the High Court.

(2.) The case of the plaintiffs-appellants is that the plaintiffs were in need of money, hence, offered to mortgage their land detailed in Schedule D of the plaint with condition to repurchase the same on consideration of Rs. 36,600/-. The defendant-respondent, namely, Brahma Nand Singh and one Dasrath Prasad Keshri were willing to purchase jointly the land of Schedule D and, accordingly, the plaintiffs executed a registered deed of sale dated 5.2.1986. The respondent and Dasrath Prasad Keshri on the same day also executed a registered deed of agreement and agreed to reconvey the purchased land to the plaintiffs on payment of consideration money to them. It has been alleged that though the deed of sale was executed by the plaintiffs-appellants in favour of the respondent and Dasrath Prasad Keshri, they always remained in cultivating possession of the lands, as described in schedule D of the plaint. It is also alleged that the plaintiffs-appellants were in need of Rs.15,000/-. The respondent and Dasrath Prasad Keshari became ready to keep the land in mortgage, but only after calculating the interest thereupon at the rate of 4 per cent for three years, the price was accordingly fixed at Rs. 36,600/-. It is further alleged that the plaintiffs-appellants in the first week of January, 1989, repaid Rs. 5,500/- to the respondent in presence of the witnesses upon which he promised to re-convey the suit land, but even thereafter he did not re-convey the land and extended time for execution of the deed of re-conveyance. Ultimately on 10.4.1992, Dasrath Prasad Keshri received consideration money of his share i.e. Rs. 18,300/- and executed the deed of sale re-conveying half of the land of Schedule D in favour of the plaintiffs. It is also claimed that the plaintiffs also requested the respondent to receive his consideration money and to re-convey the schedule D land of his share but he delayed the matter, whereupon the plaintiffs sent registered legal notice to defendant No. 1 but even then the respondent failed to perform his part of contract and hence, the plaintiffs filed the suit.

(3.) The respondent contested the suit and filed written statement alleging therein that the deed of agreement contained a specific terms that if the plaintiffs paid back the consideration amount at any point of time within three years then the respondent and Dasrath Prasad Keshri would re-convey the land of Schedule D. It is also claimed that the plaintiffs remained in possession of the land after execution of the sale deed. The plaintiffs-appellants had never been willing to perform their part of contract nor they had paid money within the stipulated period of three years as contained in the agreement. According to him, the plaintiffs-appellants never paid any money to the defendant nor they had requested for extension of time nor the defendant ever orally agreed to extend the time. He has also denied that on 10.4.1992 the plaintiffs tendered any consideration money nor there had been any such occasion till date and, as such, the plaintiffs have lost their right of re-conveyance.