RAMAKANT DIXIT Vs. SANDHYA BAJPAI

JUDGEMENT

(1.) THIS first appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 29th November, 2002 passed in Civil Suit No. 35-A/01 whereby the learned II Additional District Judge, Baloda Bazar has decreed the suit for specific performance of contract of original Plaintiff Rajkumar Bajpai. Respondents 1(a), 1(b) and 1(c) are legal representative of the Plaintiff Rajkumar Bajpai, who died during pendency of the appeal. (Parties shall hereinafter be referred to as per their description before the trial Court.)

(2.) THE Plaintiff filed a suit for specific performance of contract against Defendant-Ramakant Dixit and his brother Chandrakant-Defendant No. 2 with the averments that they entered into an agreement of sale with respect to their undivided property with house bearing Plot No. 39 (piece), Sheet No. 14 C in Village-Baloda Bazar, P.H. No. 77/A/11/A, Rani Mandal, Tahsil-Baloda Bazar (1/2 share of both the share holders i.e. 1/4th part of the total land of size 24 1/2 x 110 ft. = 2695 sq.ft. approximately), situated on the main road, Baloda Bazar (hereinafter referred to as "the first property"), which would fall in share of Defendant No. 1 after partition.

(3.) IT was further averred that in that contingency, it will be the option of the Plaintiff to purchase either of the two properties and the Defendants shall be bound to execute the sale deed of either of the two properties at the option of the Plaintiff. Since the Defendants failed to effect partition of the first agreed land by registered partition deed between Bulakidas Mundra and Defendants No. 1 and 2, and were also not able to get the land mutated in the name of Defendant No. 1 and renew the lease despite repeated reminders and written notice and the first property is still occupied by the tenants, a suit for specific performance of contract with respect to the second property was filed. IT was pleaded that though the Plaintiff expressed his readiness and willingness to pay Rs. 2 lacs and asked the Defendants to execute the sale deed after receiving remaining consideration of Rs. 2 lacs, the Plaintiff also served the Defendants with a notice dated 4.8.2000 through their advocate, however, Defendant No. 1 vide his reply dated 5.2.2001 denied to execute the sale deed.