PAULUS TIGGA Vs. XAXARIOS EKKA

JUDGEMENT

(1.) BEING aggrieved by the judgment and decree passed in Civil Appeal No. 40-A of 2005 on 08.11.2005 by Shri G.C. Bajpai, District Judge, Jashpur, reversing the judgment and decree for specific performance of contract granted by Civil Judge Class-II, Jashpur passed in Civil Suit No. 19-A of 2003 on 30.11.2004 the appellant/plaintiff has preferred this second Appeal.

(2.) THE appellant-plaintiff filed a suit for specific performance of contract against the respondents/defendants No. 1 to 6 on the ground that father of the defendants No. 1 to 5 and husband of defendant No.6 late Tyofil Ekka had, on 10.09.1980 agreed to sell 0.25 acre of land, out of Kh. No. 125 area 1.38 acres (hereinafter referred to as the suit land) situated in village Gudlu, Patwari Halka No.34, revenue circle and Tohsil Bagicha, District Jashpur for a sum of Rs. 300/- and had executed Ekranama Ex.P. l. The plaintiff had constructed a residential house and Badi oyer the suit land and was in possession thereof. During his lifetime, Tyofil Ekka did not, in any manner, interfere with the possession of the plaintiff over the suit land. After executing the Ekrarnama on 10.09.1980, Tyofil Ekka borrowed additional sums of Rs. 150/- on 4.6.1982, Rs. 20/- on 25.03.1984, Rs. 15/- on 25.08.1984, Rs. 50/- on 16.05.1990 and Rs. 30/- on 15.01.1995 (Total Rs. 585/-) from the plaintiff. Since Tyofil Ekka did not return the loan advanced, the plaintiff included the aforesaid sums as consideration of the suit land. In this manner, the entire consideration of Rs. 885/- was paid by the appellant/plaintiff to Tyofil Ekka On death of Tyofil Ekka, the defendants started causing disturbance in the plaintiff possession over the suit lands and were threatening to dispossess him. It was further pleaded by the plaintiff that upon demarcation being got done by the Patwari in presence of Tyofil Ekka, the suit land was found to measure to 0.48 acre in place of 0.25 acre. Since the plaintiff was in adverse possession of the suit land since 1980, he claimed a relief of a declaration of his title and possession over the suit land and also for specific performance of the agreement dated 10.09.1980 praying that the defendants be directed to execute a sale-deed of 0.48 acre of land in favour of the plaintiff. It was further prayed that the defendants be restrained by permanent injunction from interfering with the possession of the plaintiff.

(3.) SHRI Kishore Bhaduri, learned counsel for the appellant/plaintiff has placed reliance on Prithivi Raj Singh vs. Dalip Kulkarni and others ( : AIR 1999 Raj 201 ) in support of his contention that where the vendor had received the whole consideration on execution of the agreement to sell, there remained nothing to be performed on the part of the vendee, the absence of pleadings of readiness and willingness to perform his part of the contract were not fatal to the plaintiffs case. Reliance was also placed on Shyamlal Kumar Roy v. Sushil Kumar Agarwal ( : AIR 2007 SCW 234 = JT 2006 (9) SC 483) in support of the contention that no objection, having been raised by the respondents/defendants at the time of admission of the document Ex.P. 1 in evidence, Section 36 of the Indian Stamp Act, 1899, prohibits a Court of law from reopening a matter with regard to the sufficiency or otherwise of the stamp duty paid on such instrument. On the other hand, Shri J.K. Shastri, learned counsel for the respondents/defendants argued in support of the judgment delivered by the learned Civil Judge, Class-II, Jashpurnagar and placed reliance on Md. Mohar Ali v. Md. Mamud Ali and others ( : AIR 1998 Gau 92) contending that in the absence of specific pleadings of readiness and willingness of the plaintiff to perform his part of the contract, the plaintiff was not entitled to a decree for specific performance of contract, if any. The following substantial questions of law arose for determination of this appeal: