SOMESHWAR NATH BHARGAVA Vs. KUSUM KUMARI

JUDGEMENT

(1.) These analogous Appeals and Civil Revision involve similar questions for determination, hence it is convenient to dispose them of by a common judgment.

(2.) Defendant's First Appeal No. 172 of 1983 arises out of Original suit No. 17 of 1977 (for short first suit). Plaintiff's First Appeal No. 148 of 1983 arises out of Original suit No. 19 of 1982 (for short second suit). This second suit was filed for declaration that Plaintiffs were co-owners of the land in dispute along with Someshwar Nath Bhargava, the Defendant No. 1. First Appeal No. 172 of 1983 would, however, be the leading appeal.

(3.) Both the appeals have been filed against the common decree dated 3rd January 1983, pissed by the Addl. Civil Judge, Allahabad, decreeing the first suit filed by Smt. Kusum Kumari and dismissing the second suit filed by Parmeshwar Nath. The first suit was filed by Smt. Kusum Kumari against Someshwar Nath Bhargava, for specific performance of the agreement for sale dated 24-2-1977 with the allegations that Defendant Appellant agreed to sell western portion of No. 12 (New No. 16) Mayo Road Allahabad, to the Plaintiff Respondent for a consideration of Rs. 99889/- out of which a sum of Rs. 5000/- was paid in cash to the detendant as part payments of sale consideration and balance was agreed to be paid at the time of registration of the sale deed and the Defendant stated in the agreement that he has purchased the property in question by a sale deed dated 13-11-63 along with Radhakant and Ramendranath Bose and there has been oral partition between Someshwarnath Bhargava and Radhakant Bhargava and that the Defendant in the first suit is in possession of separate portion in respect of which he has agreed to execute the sale deed. As the land was not yielding any income rather lying vacant and the Plaintiff offered the highest price hence he agreed to execute the agreement for sale and later on he would execute sale deed within 2 months from the date the name of the Defendant in the first suit was mutated over the said property. Before that he would satisfy the Plaintiff in the first suit, about his right to transfer. The mutation was effected in the name of the Defendant Appellant in the first suit on 20-11-73 nevertheless he did not inform the Plaintiff about his name being mutated. Immediately after coming to know about the order of mutation in favour of Defendant Appellant in the first suit, notice was sent to the Defendant on 26-11-76 to the effect that Plaintiff was ready and willing to perform her part of the contract and the Plaintiff was ready to pay balance of the sale consideration and Defendant was directed to execute the sale deed but after receipt of the said notice the Defendant furnished incorrect information and replied incorrectly Then second notice was given directing the Defendant Appellant to perform his part of the contract. Inspite of service of the second notice the Defendant Appellant did not execute the sale deed, as agreed upon, hence the Plaintiff had no option but to file the suit for specific performance of the agreement for sale.