BISAHU SON OF JAGESHWAR SAHU Vs. PURUSHOTTAM VAISHNAV

JUDGEMENT

(1.) This appeal is against the judgment and decree dated 30.06.2007 passed in Civil Suit No.15-A/2002 whereby the suit filed for specific performance by the respondent plaintiff namely Purushottam Vaishnav was dismissed and it was directed to refund the amount of sale consideration of Rs.80,000/- to the purchaser which was paid as a sale consideration. The said judgment and decree was subject of appeal before this Court. This Court in First Appeal No.109 of 2007 decided on 07.09.2012 framed additional issues as to whether the seller Bisahu was of unsound mind on the date of execution of agreement and further whether such agreement is enforceable. It was directed to the trial Court to record its finding on such issues and thereby remitted the matter back to the trial Court to record its findings. Subsequent to it, before the trial Court the seller defendant again on the basis of the issues framed adduced the evidence of witnesses and thereafter the trial Court by judgment dated 11.02.2014 recorded the finding that seller/ defendant No.1 Bisahu was not lunatic on the date of agreement of sale i.e., 15.06.2001 and was not suffering with any mental disorder. Consequently, the agreement Ex.P-1 was held to be validly executed. Subsequent to it, the said findings, judgment and decree of the Trial Court are under challenge before this Court. Therefore, with such findings, the instant appeal is for adjudication afresh.

(2.) Briefly stated facts of the case are that the suit was filed by Purushottam Vaishnav, the original plaintiff/respondent herein on the ground that defendant No.1 Bisahu, appellant herein, has entered into agreement of sale dated 15.06.2001 and agreed to sell the part of land bearing Khasra Nos.6/4, 15/14, 75/1 & 75/4, total admeasuring 0.695 RA situated at village Singhauri for a sale consideration of Rs.84,000/-. It was contended that out of sale consideration of Rs.84,000/-, Rs.80,000/- was received by the defendant in advance and agreement of sale was executed on 15.06.2001. It is further agreed that the remaining sale consideration of Rs.4000/- would be paid at the time of registration of the sale deed and the sale deed was agreed to be executed by 30.05.2002. It is further contended that the agreement of sale was scribed by one Prafull Chand Tiwari who was a document writer and the said agreement was signed by Bisahu, defendant No.1 in presence of the witnesses Dukalaha Verma and Daya Ram who also signed the said agreement.

(3.) The plaintiff/respondent contended that he is ready and willing to pay remaining part of sale consideration but in order to defeat the agreement of sale, the land was further recorded in the names of his sons namely of Daulat Ram and Hariram in the revenue records which was subject of challenge in the revenue proceeding. It was stated that initially the names of sons were recorded but subsequently on appeal being made by the plaintiff Purushottam, the same was set aside by order dated 26.2.2002 passed by the SDO, Bemetara. The plaintiff contended that after lapse of agreed date i.e., 30.05.2002 for execution of the sale deed as per the conditions of agreement, the plaintiff requested the defendant to execute the sale deed but the same was not adhered to and therefore, two notices were served on defendant on 04.07.2002 and 18.07.2002 which the defendant refused to accept. Consequently, a civil suit was filed for specific performance of the sale. The plaintiff also contended that because of the fact that sale was not executed, the plaintiff has suffered loss, therefore, damages of Rs.5000/- was claimed and in the alternative it was prayed that an amount of Rs.80,000/- with interest should be refunded to the plaintiff in case the sale is not executed.