JAGDISH PRASAD ALIAS BHOOPJI Vs. PANNA LAL

JUDGEMENT

(1.) -Present second appeal has its genesis in the judgment and decree dated 7.9.1983 passed by appellate court in Civil Appeal No. 49 of 1981, whereby the judgment and decree dated 25.4.1980 passed by the trial court in Original Suit No. 163 of 1973 was affirmed.

(2.) A brief resume of necessary facts is that the plaintiff, to begin with, instituted a suit for specific performance of contract on the premises that under the agreement defendant was called upon to execute sale deed within a span of five years on payment of sale consideration of Rs. 4,000. The plaintiff according to the facts on record, executed sale deed as against his 1/2 share of the property in question in favour of defendant No. 1 on 6.7.1968 for a consideration of Rs. 4,000 subject to the stipulation as contained in the agreement that the defendant No. 1 would re-convey the property in favour of the plaintiff in case the amount of sale consideration was repaid to him within a period of five years. Subsequently, the defendant it would further appear from the record, prevaricated on re-conveyance of property despite willingness and readiness expressed by the plaintiff on various occasions and ultimately, repudiated the contention that any such agreement was effected between the parties and hence the suit was instituted for specific performance and also for cancellation of sale deed dated 24.5.1974 which was executed by the defendant No. 1 in favour of defendant No. 2. The suit instituted by the plaintiff culminated in judgment and decree in favour of the plaintiff and against the defendant mandating the defendant to execute sale deed within a month and also to hand over possession to the plaintiff and attended with further relief of rescinding the impugned sale deed executed by the defendant No. 1 in favour of defendant No. 2. In appeal, the judgment and decree received affirmance by means of judgment and decree dated 25.4.1980.

(3.) I have heard Sri Pankaj Agrawal, learned counsel holding brief of Sri V. K. Gupta, learned counsel for appellant as well as Sri V. D. Ojha and Sri K. D. Tripathi, learned counsel for opposite parties. The main plank of argument was that the suit was premature as it was instituted within five years which was the limitation fixed under the agreement and by this reckoning, proceeds the submission, the decree passed by the Courts below is erroneous being vitiated in law.