KANHAYALAL HUKUMATRAI BANAWANI Vs. KESHAV SHANKAR RANADE

JUDGEMENT

(1.) RESPONDENT No. 1 though served has remained unrepresented. Service on 2nd respondent is held sufficient.

(2.) THE appellants are the Legal Representatives of the deceased Plaintiff and respondents were the defendants in thetrial Court. For the sake of convenience the parties are referred to as per their rank in the Trial Court.

(3.) THE plaintiff filed the suit in O. S. No. 66/81 for specific performance of the agreement dated 22. 1. 1980 executed by defendants 1 and 2 in respect of the suit Schedule property or for refund of the advance amount-paid, (the deceased plaintiff is herein after referred to as plaintiff ). The agreement for sale contained certain terms and conditions. However, the suit schedule property was sold in favour of the 3rd defendant on 6. 4. 1981. Hence the plaintiff filed the suit. The defendants resisted the suit. Defendants 2 and 3 filed written statement and the same was adopted by the first defendant. Defendants contended that plaintiff had consented of sale of the suit schedule property in favour of the 3rd defendant. It was contended that the plaintiff is not entitled for the relief as he failed to perform his part of the contract. Defendants prayed for dismissal of the suit. On the basis of the pleadings, the Trial Court framed issues. Both the parties led evidence by examining witnesses and producing documents. On appreciation of the material evidence on record, the Trial Court by its judgment dated 26. 10. 1984 decreed the suit directing defendants 1 and 2 to execute sale deed in favour of the plaintiff pursuant to the agreement dated 22. 1. 1980. A direction was issued to 3rd defendant to join defendants 1 and 2 in the execution of the sale deed. Aggrieved by the same, the 3rd defendant filed appeal in R. A. No. 153/89. During the pendency of the said appeal, the 3rd defendant sold the suit schedule property in favour of 4th respondent and hence she was impleaded in the appeal. Upon consideration of the appeal the first-appellate Court by its judgment dated 9. 10,1998 allowed the appeal and modified the judgment and decree of the Trial Court directing the first defendant to refund the amount of Rs. 14. G46/- with interest to the deceased plaintiff aggrieved by the same, this second appeal is filed by the deceased plaintiff.