LALARAM SAHU Vs. JEEVRAKHAN LAL VARMA

JUDGEMENT

(1.) The appellant/ plaintiff has preferred this First Appeal under Sec. 96 of the CPC against the judgment and decree dtd. 5/11/2016 passed by District Judge, Bemetara, District Bemetara in Civil Suit No. 14-A/2013, whereby the suit filed by the plaintiff for specific performance of the contract has been dismissed by the trial Court. [For the sake of convenience, the parties would be referred to as per their status shown in the plaint]

(2.) Essential facts leading to file the instant first appeal are that late respondent No. 1/defendant - Jeevrakhan was the original owner of the land bearing Khasra No. 1082/1, area 2.06 hectare (5.15 acres) situated at village Gudheli, Tahsil- Berla, District Bemetara (hereinafter referred to as "the suit land"). He entered into an agreement to sell on 8/5/2002 vide Ex.P-1 with the plaintiff for sale of suit land for a total consideration of Rs.1,55,000.00. The plaintiff paid Rs.1,30,000.00 to defendant No. 1 as advance and balance sale consideration of Rs.25,000.00 was to be paid at the time of registration of the sale deed. It was also agreed between the parties that sale deed of the suit land shall be executed at the convenience of the plaintiff/purchaser, defendant also handed over possession of suit land to the plaintiff on 8/5/2002 itself. Despite repeated oral request to execute sale deed, defendant No. 1 kept procrastinating. When the sale deed was not executed as promised, the plaintiff issued a legal notice dtd. 15/7/2010 (Ex.P-3) through his counsel to defendant No. 1 to execute the sale deed after accepting balance sale consideration of Rs.25,000.00 within a period of seven days but since defendant No. 1 did not respond the same, plaintiff sent a second legal notice dtd. 18/8/2010 (Ex.P-4) to defendant No. 1 reiterating his earlier prayer, but again the defendant No. 1 did not respond the same forcing the plaintiff to institute civil suit on 4/11/2011 before the District Judge, Bemetara for declaration that the plaintiff is entitled to execute the registered sale-deed of the suit land from defendant No. 1 and he be directed to execute the sale-deed, on his denial, the court be executed the same in favour of the plaintiff, if the suit land is occupied by any third party during pendency of the suit, then the possession of the same be returned to the plaintiff and they be restrained from interfering in his possession of the suit land, in alternative, in case of non-execution of registered sale deed; an amount of Rs.1,30,000.00 alongwith interest be directed to be returned to the plaintiff by defendant No. 1.

(3.) Defendant No.1 -Jeevrakhan (died during dependency of the trial) has filed written statement, in which, he has denied all the substantive pleadings made by plaintiff. He has denied the execution of agreement to sell between him and plaintiff, rather he has pleaded that he has borrowed some money from the plaintiff, to which plaintiff had taken his signature on blank paper. After returning aforesaid loan amount, plaintiff had assured him that he will tear the document executed in this regard i.e. with regard to transaction of aforesaid alleged loan amount, but taking undue advantage of illiteracy of defendant No. 1, plaintiff did not tear that document and the same has been used by him fraudulently in the instant suit by writing contents of alleged agreement to sell on it. He has further pleaded that he along with his family members are in possession of suit land and he has never given possession to the plaintiff on it. Notices dtd. 15/7/2010 & 18/8/2010 have never been served to him. It has also been pleaded that the suit filed by the plaintiff is barred by limitation, therefore, the suit is liable to be dismissed.