RAMDAS AGRAWALKUMAR Vs. VISHAMBHAR PRASAD

JUDGEMENT

(1.) The instant appeal is against the judgment and decree dated 18.09.2009 passed in Civil Suit No.1-A/2006 by the Additional District Judge, Sarangarh, District Raigarh, whereby the suit for specific performance was decreed in favour of the plaintiffs.

(2.) The brief facts of this case are that a suit was filed initially by Vishambhar Prasad (since deceased) plaintiff No.1; Makru Prasad plaintiff No.2 and Gopal Prasad, plaintiff No.3 the prospective purchasers against owner of the property Smt. Urmila Bai (since deceased) defendant No.1; Santosh Kumar, defendant No.2; Devkinandan (since deceased) defendant No.3 & Ku. Sarojni, defendant No.4; they are all legal heirs of Shyamlal and defendant Devkinandan was minor at that time. The defendant No.5 was Bharatlal, one of the relative of the defendants. The defendant No.6 Ramdas and defendant No.7 Padamkumar were the purchaser of the suit property for which suit for specific performance was filed. The suit was filed on 24.12.1988 and in prayer in alternate the amount given as earnest money of the sale consideration was prayed to be returned along-with damages.

(3.) (I) This fact was not in dispute between the parties that defendant No.1 to 4 are the legal heirs of Shyamlal. Shyamlal along-with Bharatlal, defendant No.5, were joint holders of the land bearing Khasra No.966/1 admeasurig 1.18 acres. The defendant No.5 Bharatlal (since deceased) had at earlier point of time sold 28 dismil land out of his share of land of 0.60 dismil. Thereby out of the remaining land of 90 dismil, 32 dismil remained with Bharatlal and rest of 58 dismil belonged to Shyamlal through whom defendant No.1 to 4 claimed their right. It is stated that while the partition was carried out by inadvertence ignoring the land sold by Bharatlal again 0.45 dismil was recorded in his name, thereby 13 dismil more were recorded though he had sold some part of land earlier. The defendant Urmila Bai & Santosh Kumar who were the major, taking into the shares of Devkinandan and Sarojni who were minors decided to sell a part of land bearing Khasra No.966/1 admeasuring 0.58 dismil for Rs.90,000/- to the plaintiffs and Rs.11,000/- was received as advance. It is stated, it was agreed that on the date of "Falgun Punni" (date falls in March) the rest of the amount would be paid and registry would be made. It was also agreed that the possession would also be handed over. At the time of agreement, it was found that since at the front portion of the land certain encroachment was made and it was agreed that after removing the encroachment the sale deed would be executed.