RAVJI RATNA GORASIA Vs. HASUMATIBEN PRANLAL SONI

JUDGEMENT

(1.) BY this appeal, the appellants herein � original defendants have challenged the judgment dated 27.08.1998 passed by the learned 3rd Joint Civil Judge, (SD), Kutch at Bhuj in Special Civil Suit No.141 of 1994, by which the learned Judge has directed the original defendants to get the land measurement corrected in the revenue record and execute the sale deed of 8 acres and 16 Gunthas of survey no.10 of village Madhapra, Taluka � Bhuj, Kutch for equivalent consideration. Further the learned Judge restrained original defendants from transferring or selling the land. Hence, present appeal.

(2.) FACTS of the case are as under :

(3.) HEARD learned advocates for the respective parties. This Court has gone through the oral as well as documentary evidence produced before the Trial Court. As per Exh. 58 agreement to sell, within four months, the plaintiff had to make payment of remaining amount of Rs.12 lacs to the defendants. Therefore, case is put forward by the plaintiff that as per terms and conditions of the agreement to sell, he requested defendants to carry out measurement of land through DILR and as defendants did not care, plaintiff carried out the said exercise. On minutely going through Exh.58 � agreement to sell, it is found that there was no condition with regard to measurement of land and that remaining amount was to be paid by the plaintiff to the defendants as per measurement. As per 7/12 abstract of the land i.e. Survey No.10 is concerned, it is mentioned in the said document that land is admeasuring 9 acres and 24 gunthas and as price of the land is not fixed as per sq.yard, acre or RA, total amount of Rs.13,50,000/ is fixed for entire land, therefore, question does not arise for measurement of land and the plaintiff has to make payment of Rs.12 lacs within four months from the date of agreement to sell. Exh.64 is the also important document dated 29.04.1992 which is reply of defendant in respect to notice issued by the plaintiff in which it is specifically stated that there was no condition in the agreement to sell Exh.58 for measurement of land and price is fixed for total land. As per this reply and notice issued by the defendants to the plaintiff, the plaintiff was not ready to make payment of remaining amount of Rs.12 lacs and so agreement to sell was cancelled by issuing letter dated 10.02.1992 and it was informed through RPAD post by the defendants to the plaintiff. It is to be noted that in the cross examination, the plaintiff has admitted that he has no doubt for the title of the land. He has also admitted that there was no mention that both the parties could get the land measured. He has also admitted that four months completed on 07.01.1992. HE has also admitted that till 07.01.1992 the defendant was not informed about the measurement but the same was done on 08.01.1992.