BAIJNATH PRASAD DWIVEDI Vs. ASHA DEVI

JUDGEMENT

(1.) A Suit for specific performance was filed by the Plaintiff/Appellant Baijnath Prasad Dwivedi which was decreed in part by the Trial Court on 30.11.2010 and instead of a direction that a sale deed be executed upon the payment of the remaining amount, Rs. 30,000/- alongwith 6 per cent interest was ordered to be returned to the Plaintiff/Appellant. A cross case was brought by the defendant praying that possession be delivered to her by the plaintiff if in case he was found to be in possession. The cross case of the defendant was dismissed for want of court fees. Against the decree, both the Plaintiff/Appellant and the Defendant filed separate Appeals. The Appeal filed by the Plaintiff/Appellant was numbered as 52 of 2011 and the First Appeal filed by the Defendant was numbered as 168 of 2010. The Plaintiff/Appellant had filed the Appeal for decreeing the Suit in toto meaning thereby that the Defendant be directed to execute the sale deed as per the registered agreement dated 5.1.1988 and the Defendant filed the First Appeal for dismissing the Suit as a whole and for decreeing her cross-claim. The First Appeal of the Plaintiff/Appellant was dismissed whereas the First Appeal of the Defendant was allowed.

(2.) The Second Appeal No. 1403 of 2014 as also the Second Appeal No. 1404 of 2014 were filed by the plaintiff. At the time of admission, the following questions of law were framed.

(3.) The Original Suit being Original Suit No. 98 of 1991 was instituted by the Plaintiff/Appellant on 29.1.1991 wherein it was stated that the Plaintiff/Appellant was entitled for getting a sale deed executed in pursuance of the registered agreement to sell dated 5.1.1988. It was further stated that the cause of action had arisen on 11.1.1991 when the Defendant Asha Devi it was learnt had entered into a compromise with Rambabu, the brother of Budh Prakash from whom Asha Devi herself had bought the property on 26.5.1987. It was stated in the Plaint that initially one Budh Prakash, the son of Mata Prakash resident of Balkaranpur was the owner of the property with regard to which the Defendant Asha Devi had entered into an agreement to sell on 5.1.1988. The Plaintiff/Appellant had stated that when the Defendant had purchased the property on 26.5.1987 from Budh Prakash, she had filed an application for mutation in her name before the Consolidation Officer, Soraon and this application was still pending. The sale deed executed by Budh Prakash was admitted by him. After Budh Prakash had sold the property to the Defendant Asha Devi, the brother of Budh Prakash, Rambabu had tried to get his name mutated over the property in question, to the exclusion of Asha Devi. However, when Asha Devi contested the case with Rambabu, the name of Budh Prakash had continued despite the fact that the Defendant Asha Devi had agreed to sell the property to the Plaintiff/Appellant by a registered agreement dated 5.1.1988. When on 11.1.1991, the Plaintiff/Appellant came to know that the Defendant was entering into a compromise with Rambabu then he filed the instant Suit. Before filing the Suit, he had put the Defendant Asha Devi to notice that she had to appear before the Registrar for executing the sale deed.