GODHAN Vs. RAM BILAS

JUDGEMENT

(1.) This second appeal arises out of judgment and decree dated 26-5-1984, passed by the 10th Additional District Judge, Sitapur in Civil Appeal No.42 of 1984 arising out of judgment and decree dated 25-2-1984, passed by Civil Judge, Sitapur in Regular Suit No.117 of 1982 whereby the trial Court had decreed the plaintiff-respondent's claim in suit and First Appellate Court had also confirmed the said decree and judgment of the trial Court.

(2.) The facts of the case in brief are that plaintiff-respondent Ram Bilas filed a suit against the defendants-appellants Godhan and 3 others for specific performance of contract to execute the sale deed in respect of agricultural plots Nos. 116 (area 1 bigha 13 biswan) 117 (area 2 biswa), 118 area 1 biswa), and plot No.134 (area 4 bighas and 10 biswas 11 biswansi) situated in village Pooranpur, Pargana Bari, Tahsil Sidhauli, District Sitapur. According to the plaint case on 18-11-1981, the defendant No.1 has entered into an agreement for sale of plots in dispute to the plaintiff for a sum of Rs. 12,000.00 and a sum of Rs. 1000.00 was paid by the plaintiff respondent to the defendant-appellant No.1 on the aforesaid date and it was agreed upon that when the plaintiff will require the defendant No.1 will execute a sale deed of the above mentioned plots of land in favour of the plaintiff after having received of the balance amount of sale consideration. According to the plaintiff's case the agreement to execute the sale deed was executed on 18-11-1981 in writing and was registered on 19-11-1981 in accordance with the requirements of law. The plaintiff further averred that on 15-3-1982 the defendant No.1 received a further amount of Rs. 5,000.00 from the plaintiff and executed a receipt for the same in favour of the plaintiff-respondent. According to the plaintiff-respondent's case the defendant No.1 by 15-3-1982 has thus received a total sum of Rs. 6,000.00 as advanced only. The plaintiff further averred that thereafter the plaintiff required the defendant to execute a sale deed of the land in dispute in pursuance of above agreement in favour of plaintiff-respondent. The plaintiff-respondent served a written notice dated 23-6-1982 on defendant-appellant No.1 but according to the plaintiff-respondent, he did not pay any heed to that notice. According to plaint case subseqeuntly on 2-8-1982, the defendant-appellant No.1, who is the father of the appellant No.4 Kallu executed the sale deed of plot No.134 in favour of Kallu and two others, namely, Parbhu and Rewti and this sale deed in favour of defendants-appellants 2, 3 and 4 by appellant No.1 was executed on 2-8-1982. The plaintiffs case is that the defendants-appellants 2 to 4 had purchased plot No.134 which was also the subject matter of the agreement of sale. Defendants-appellants 2 to 4 had the knowledge of agreement which had been entered into between the plaintiff-respondent and defendant-appellants Nos. 2 to 4 who have been impleaded as defendants. In Paragraph-4 of the plaint, the plaintiff has averred that the plaintiff has always been ready and willing to perform his part of contract.

(3.) The defendant No.1 denied the plaintiffs allegations to the effect that the defendant No.1 had entered into an agreement to sell the plots mentioned in the earlier parts of the judgment and in the plaint. The defendant denied the agreement dated 18-11-1981 and receipt of the sums referred to above. The defendants stated and had set up theory in itself vide paragraph 11 of the written statement. The defendant-appellant No.1 had not entered into an agreement to sale as alleged in the plaint and that he did not know the plaintiff-respondent and correct facts are to the effect that on 18-11-1981 Sri Ganesh Prasad, brother of Tribhuwan Prasad and the appellant-defendant No.1 had entered into an agreement in writing with him for sale of all his plots referred to above except plot No.134 for a sum of Rs. 12,000/- and had received a sum of Rs. 1,000.00 from the said Ganesh Prasad brother of Tribhuwan Prasad. It was further pleaded in that pragraph that on 15-3-1982 the defendant-appellant did not receive the amount of Rs. 5,000.00 nor did he execute the receipt of the same. He took a plea in paragraph 12 of the written statement to the effect that he has been an uneducated villager of simple habits and on the representation of Ganesh Prasad to the effect that written transaction had been entered into about the plots except plot No.134, the defendant put thumb impression on the document. It has been further pleaded in paragraph 13 of the written statement that the defendant-appellant No.1 asked Ganesh Prasad to get the deed executed after having paid the balance of Rs. 11,000.00 but Ganesh Prasad had been avoiding and thereafter he got auctioned the plots in the name of the wife of his brother Tribuwan Prasad, but Tribhuwan Prasad refused to get the sale deed executed and it is thereafter on the refusal of Sri Tribhuwan Prasad and Sri Ganesh Prasad the defendant-appellant No.1 transferred the property after taking the money from defendants 2 and 3 and paid the bank money i.e. Rs. 1000.00 to Tribhuwan Prasad and when receipt was demanded from Sri Tribhuwan Prasad for a sum of Rs. 1000.00 then Tribhuwan Prasad said that when Ram Bias will come, the receipt under his signature will be given to him but instead of receipt being given to the defendant, the suit had been filed. It was also pleaded that Tribhuwan Prasad and Ganesh Prasad on the date of agreement got thumb impression of the answering defendant made on certain blank papers and anwering defendant had put his thumb impression on the representation made by Ganesh Prasad and Tribhuwan Prasad that certain applications are to be given in the bank and there is possibility of some of that papers having been used for preparing the receipt also for the sum of Rs. 5,000.00. Thus according to the pleading in the written statement though the defendant no doubt admitted thumb impression on the document but denied the plaint case. Defendants Nos. 2 to 4 denied the plaint case and submitted that they purchased of plot No.134 on 2-8-1982 for the sum of Rs. 20,000.00 and that the answering defendants 2 to 4 are bona fide purchasers of that plot. Their case in nut shell is that they are bona fide purchasers for valuable consideration without notice of any prior agreement between the plaintiff-respondent and the defendant-appellant No.1. The defendants-appellant further pleaded that in respect of plot No.134 there had been a transaction and sum of Rs. 2,000.00 had been paid by the defendants-appellants 2 to 4 to defendant-appellant No.1 on 22-5-1981. On the basis of pleading the learned Civil Judge framed 5 issues:- 1. Whether the plaintiff and defendant No.1 had a contract for sale and purchase of the disputed land for consideration of Rs. 12,000.00. If so its effect? 2. Whether the defendant No.1 received a sum of Rs. 1,000/- from the plaintiff and got a document written on 18-11-1981 and got it registered according to the provisions of Registration Act on 19-11-1981 ? If so its effect? 3. Where the defendant No.1 received a further amount of Rs. 5,000.00 from the plaintiff on 15-3-1982 against the contract, referred to above?