SANKATHA PRASAD Vs. ABDUL AZIZ KHAN

JUDGEMENT

(1.) THIS is a second appeal against the judgment and decree dated 4-21966 of Sri Basdeo Lal Srivastava I Additional District Judge Varanasi modifying the decree of the trial Court and dismissing the appellant's appeal.

(2.) THE suit giving rise to this appeal is filed by the plaintiff appellant against the defendant respondent on the allegations that the respondent was the owner of the house detailed in the plaint, and the plaintiff appellant was occupying its portion as a tenant. On 21st of June 1960 there was an agreement between the parties by which the defendant respondent agreed to sell the disputed house to the plaintiff appellant for the consideration of Rs. 6000.00 after accepting Rs. 200.00 as earnest money. It was further agreed between the parties that after the marriage of the daughter. of the respondent, the respondent will show all the title deeds to the plaintiff and would execute the sale deed within 31st of December 1961 after accepting the balance of consideration and after adjusting the other dues due from the respondent to the appellant. It was further agreed that in case the sale deed was not executed by 31st of December 1961 it would be executed within one year from that date, and the parties will bear expenses of the execution of the sale deed half and half. In the deed of the agreement it was also written that the plaintiff has been paying the rent of the house for month to month and the respondent would be responsible for the annual repairs, white washing etc. It was pleaded that the respondent did not get the annual repairs done and the plaintiff appellant had moved an application under Section 7 of Act 3 of 1947 before the City Munsif Varanasi and displeased with this the respondent claimed arrears of rent amounting to Rs. 440.00 from the plaintiff. Although the demand was unjustified the appellant in order to save himself from eviction deposited that money. It was further alleged that in spite of the demand made by notice to the respondent the defendant did not execute a sale deed in question hence the suit for specific performance of the alleged contract.

(3.) THE trial Court after talon evidence of the parties came to the concision that the respondent had executed an agreement dated 21st of June 1960 after fully understanding the terms of agreement and the allegation that it was vitiated by fraud or coercion were false. The trial court has also held that the plaintiff has only 2/3 share in the said house and he cannot dispose of the entire house. The trial Court further found that the plaintiff appellant had not made any allegation in the plaint that all along he had been ready and willing to perform his part of the contract of which the defendant has had notice and in the absence of this allegation the plaintiff appellant could not get decree of the specific performance On the above finding the trial court dismissed the suit.