NARENDRA BAHADUR SINGH Vs. BAIJNATH SINGH

JUDGEMENT

(1.) This appeal by the defendant arises out of a suit filed by the plaintiff- respondents for specific performance of a contract of sale directing the defendant to execute a sale deed in the name of plaintiff No. 2 on receipt of a sum of Rs. 20,000/- , the balance amount of sale consideration, from plaintiff No. 1 in respect of the properties detailed in the schedule at- tached at the foot of the plaint. The case set up by the plaintiffs was that the defendant was the owner and bhumidhar of the property in suit which included a big kothi, abadi land, kitchen garden and a grove in village Namaksair, Pergana and Tahsil Sadar, district Pratapgarh, He decided to stay permanently at Lucknow and started disposing of his property lying in district Pratapgarh, He transferred several items of property to plaintiff No, 1, his brother Avadesh Singh and Harkesh Bahadur Singh and to other persons also. The defendant used to settle the sale transaction and the terms thereof orally at Lucknow and used to instruct his Mukhtar-am Sri Bharat Singh to execute the sale deeds and get them registered at Pratapgarh. The defendant approached plaintiff No. 1 to purchase the property in suit. After some negotiations, plaintiff No. 1 agreed to purchase the property in the name of his minor son plaintiff No. 2. The agreement between plaintiff No. 1 and the defendant was arrived at in August, 1963 at Lucknow in the presence of Avadesh Singh, brother of plaintiff No. 1, and Raja Raghvendra Pratap Singh, Talukedar of Manikpur State, it was stipulated that the property would be transferred for a consideration of Rs. 33,000/-, that the sale deed would be executed and got registered in the name of plaintiff No. 2 by Sri Bharat Singh, the Mukhtar-am of the defendant, that the sale deed would be executed within one year from the date of the agreement, that a sum of Rs. 10,000/- would be paid as earnest money, that plaintiff No. 1 and his brother Avadesh Singh would transfer 2 biswas of their bhumidhari land situated in the compound of the Kothi close to the temple of Shivji in favour of the defendant for a consideration of Rs. 50/-. In pursuance of the agreement, plaintiff No, 1 on 26-8- 1963 issued a crossed cheque in favour of the defendant for Rs. 10,000/- as earnest money and on the same date the plaintiff and his brother Avadhesh Singh executed a sale deed for a sum of Rs. 50/transferring 2 biswas of bhumidhari land forming part of plot No. 1221 of village Namaksair in favour of the defendant. The defendant's Mukhtar-am gave a writing to plaintiff No. 1 acknowledging receipt of Rs. 10,000/- as earnest money in pursuance of the agreement to sell the property in suit. It was pleaded that in June, 1964 the defendant assured Sri Avadesh Singh, brother of plaintiff No. 1, to execute the sale deed by 15th July, 1964. However, on hearing rumours that the defendant intended to change his mind, Avadesh Singh along with Sri Surya Baksh Singh, Vakil, Sri Balendra Bhushan Pratap Singh, M.L.A., again met the defendant at Lucknow on 28-6-1964 when they were told that the defendant had decided not to sell the property though he admitted to have entered into agreement to sell it. Thereafter Suit No. 4 of 1964 was filed in the name of Indu Prakash Singh (plaintiff No. 2) for specific performance of the contract of sale. An application was made in that suit for impleadment of Baijnath Singh as a co-plaintiff and for certain other amendments in the plaint. The prayef was, however, turned down by the court against which a revision was filed in the High Court. Subsequently the present suit was filed. It was asserted that though plaintiff No. 1 performed his part of the contract yet the defendant failed to perform his part, hence the suit. By a subsequent amendment, an assertion was made that plaintiff No. 1 is ready and willing to perform the remaining part of the contract.

(2.) The defendant contested the suit denying having entered into a contract for sale of the property in suit. He admitted to have sold 24 bighas of land under sale deeds dated 26th Aug. 1963 but asserted that the sale consideration was Rs. 20,000/- and not Rs. 10,000/- as alleged by the plaintiffs. It was alleged that only one sale deed was to be executed for a consideration of Rs. 20,000/-but plaintiff No. 1 and his brother prevailed upon Bharat Singh, in order to save stamp duty, to execute two sale deeds. One for Rs. 6,000/- and another for Rs. 4,000/- and to pay the remain- ing sum of Rs. 10,000/- before the exe- cution of the sale deed. It was this pay- ment of Rs. 10,000/- which is alleged to be the payment of earnest money in furtherance of the alleged oral agreement to sell the property in suit. The plaintiffs also managed to obtain a re-cepit for the said sum from Bharat Singh without any knowledge of the defendant. With regard to the transfer of 2 biswas land of plot No. 1221, it was pleaded that this land was included in the compound of the defendant's residential house constructed about 30 years back and had been enclosed by a boundary wall. The land was in actual and constructive possession of the defendant. The defendant on learning that plaintiff No. 1 and other members of his family got a sale deed of whole of plot No. 1221 in their favour asked them to execute a sale deed in respect of two biswas of land of that plot to avoid any future dispute and this was made a condition for transfer of 24 bighas of land by the defendant in favour of Baijnath Singh and others. The sale deed of 2 biswas of land had no concern with the alleged oral agreement in respect of property in suit. According to the defendant the property in dispute was valued at more than Rupees 80,000/- and the alleged transaction was unconscionable and unfair and con- sequently could not be enforced. The defendant also pleaded that the plaintiffs were guilty of laches inasmuch as they filed the present suit after about four years of the alleged date of agreement, plea of limitation, lack of mutuality and the contract being hit by the provisions of Section 154 of the U. P. Zamindari Abolition & Land Reforms Act were also raised.

(3.) On the pleadings of the parties various issues were framed. The trial court came to the conclusion (i) that plaintiff No. 1 paid a sum of Rs. 10,000/-on 26- 8-1963 to the defendant through his Mukhtar-am by way of earnest money and that the defendant had not received that amount as a part of sale price of the properties covered by the two sale deeds dated 26-8-1963 (Issue No. 1); (ii) that there was an agreement between plaintiff No. 1 and the defendant for the sale of the property in suit on 4th August, 1963 for a consideration of Rs. 30,000/-, that the sale deed was to be executed within a year of the date of agreement in the name of Indu Prakash benami for his father Baijnath Singh, that Baijnath Singh and his brother Avadesh Singh would transfer two biswas of their land forming part of plot No. 1221 to the defendant, that there was no lack of mutuality of contract between the parties and that it did not affect the rights of the plaintiffs adversely to execute the alleged agreement (Issues Nos. 2 and 4); (iii) that the contract was not hit by the provisions of Section 154 of U. P. Act No. 1 of 1951 (Issue No. 7); (iv) that the plaintiffs were not guilty of laches in bringing the suit and the suit for specific performance was enforceable in law (Issue No. 8); that the suit was not barred by law of limitation in consequence of the amendment of the plaint (Issue No. 6); that plaintiff No. 1 is entitled to obtain a sale deed from the defendant in the name of his son plaintiff No. 2 of the properties in suit on payment of Rupees 20,000/- (Issue No. 3). On these findings the suit was decreed.