SHITLA PRASAD Vs. BANWARI

JUDGEMENT

(1.) THIS is defendant's appeal under Section 100 C.P.C. This Court formulated following substantial questions of law after hearing under Order 41 Rule 11 C.P.C.:

(2.) SRI Manish Goyal, Advocate, has made his indepth threadbare arguments covering the entire aspects of the matter relevant for adjudication of the aforesaid questions of law with great ability, and, Sri Anil Sharma, learned counsel appearing for respondents, has met the plaintiff's case by advancing his arguments with a similar ability and that is how both the sides have placed enough material as also a number of precedential authorities to make it convenient for this Court to arrive at a just conclusion.

(3.) BANWARI , son of Sukhdev, now deceased and substituted by his legal heirs, i.e., plaintiffs (respondents in this appeal), held a land comprising plot no. 705 area 24 dismal, situate on the main road leading from Varanasi to Baluwa, falling in Gaura Bazar. He got ownership rights pursuant to a sale -deed dated 23.9.1974, executed by earlier owner Smt. Kumari Devi, wife of Lakhnu Sav. The old Bandobast Arazi number of disputed land was 299/2 area, 25 dismal. The land had its commercial value. The plaintiff, Banwari, got ten permanent shops constructed on the road side, over disputed land. The shops were let out to various persons on rent. There was vacant land on the back side of shops which was surrounded by a boundary wall made of bricks and on the western side of the wall, an iron gate was installed. The land on the back side of shops was not used for any agricultural purpose. The defendant -appellant had a shop on eastern corner, north facing, to plot no. 705, appurtenant to road. He, however, was facing problem for residential accommodation. He requested for two dismal of land from plaintiff Banwari for consideration of Rs. 24,000/ - which was acceded to by plaintiff and possession was given to him. The defendant -appellant constructed a Kothari and started enjoyment of land, given in his possession, with the promise that sale -deed shall be executed in August' 1995, by which time, he shall arrange requisite funds. On 23.8.1995, both the parties went to registry office, executed sale deed for a consideration of Rs. 24,000/ -, in respect of land measuring 2 dismal only. The actual handing over of consideration amount did not take place since defendant -appellant promised to pay aforesaid amount at the residence, and, plaintiff, believing on such promise, executed sale deed.