POORNA NAND Vs. PRAKASHWATI

JUDGEMENT

(1.) This appeal, preferred by the plaintiff (present appellant) under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 19-12-1977, passed by learned District Judge, Dehradun in Civil Appeal Nos. 162 of 1976 and cross objection No. 55 of 1977, whereby the appeal and cross objections are dismissed, affirming the judgment and decree dated 28-8-1976, passed in Suit No. 85 of 1975. The trial Court had dismissed the suit for specific performance of contract and decreed for recovery of Rs. 2,500/- paid to the defendant as part consideration by the plaintiff and further directed that plaintiff should restore the possession of land in suit to the defendant.

(2.) I heard learned counsel for the parties and perused the entire record.

(3.) Brief facts of the case are that plaintiff- appellant filed suit for specific performance of agreement to sell land in question and in alternative for recovery of damages from the defendant - respondent. According to the plaint case, three brothers, namely Govind, Sobha and Ram Swaroop were bhumidhar of plot No. 488 in village Ajabpur Kalan in district Dehradun. The recorded area of said plot was 0.37 acres. By way of execution of three separate sale deeds, they transferred the land to Mohan Singh, Bhagwan Singh and defendant Prakashwati. Later, Mohan Singh transferred his share to Balbir Singh Sajwan, through a registered sale deed dated 12-4-1973. The three new owners partitioned the property by making over eastern portion (area 0.13 acres) to Balbir Singh, the middle portion (area 0.12 acres) to Prakashwati (defendant) and remaining 0.12 acres on the western side went to Bhagwan Singh. Thereafter.vide agreement dated 25-6-1973, Smt. Prakashwati agreed to sell the land, owned and possessed by her, to plaintiff Poorna Nand for a sum of Rs. 5,000/-. Sale deed in pursuance of said agreement was to be executed by 25-6-1974 and one of the terms of the agreement was that vendor would get her share demarcated and the boundary walls erected around the same. Later, the period for execution of the sale deed was extended by 31-3-1975 as the defendant failed to raise the boundary wall over land agreed to be sold. However, later on it was found that the land actually possessed by the defendant was only 0.072 acres and not 0.12 acres. The rest of the land of plot No. 488 was possessed by other two owners. Meanwhile, the plaintiff got possession of the said area of 0.072 acres of land from the plaintiff, but sale deed remained to be executed. On this, the plaintiff served notice on the defendant for alleged violation of her part in executing sale deed and filed suit for specific performance of contract and in alternative recovery of the consideration paid by the plaintiff to the defendant.