PRABHU DAYAL Vs. LALA RAM AND OTHERS

JUDGEMENT

(1.) THIS is defendant's appeal against the decree and judgment dated 2.2.1966 of IIIrd Additional Civil Judge, Agra in Civil Appeal No. 399 of 1964 reversing the decree of the trial court (Ifnd Additional Munsif, Agra) dated 18.8.1964 in Original Suit No. 913 of 1962 by which the plaintiffs' suit for specific performance of contract for reconveyance of certain property had been dismissed. The facts giving rise to this appeal briefly stated are as follows.-

(2.) THE property in suit was originally owned by Lala Ram and Devi Ram who were the real brothers. They sold the property to Kali Charan Gupta, defendant No. 2 by means of a sale deed dated 15.3.1953 for Rs. 2000/-. On the same day a contract for reconveyance was also executed by the vendee stipulating that the property shall be reconveyed within four years. It may be stated here that in the plaint this sale deed was described as mortgage deed. Devi Ram died on 12.12.1954 leaving his widow Smt. Bhagwati and two sons, Om Prakash and Ramesh Chandra, plaintiff respondents. No steps were taken by Lala Ram or the heirs of Devi Ram for getting the property reconveyed during the period of four years. Kali Charan Gupta defendant No. 2 then sold the property to defendant No. 1 i e. Prabhu Dayal appellant. It may be stated here that Kali Charan Gupta in his deposition admitted that he had informed Prabhu Dayal about the contract of reconveyance but at the same time had told him that the stipulated period of four years was over and no attempt was made by any person to get the propsrty recon­veyed. It may also be stated here that concurrent finding of facts have, been recorded by both the courts that Om Prakash had attained majority before the death of his father. The present suit was, however, brought on 10.11.1962 by Lala Ram, Smt. Bhagwati, Om Prakash and Ramesh Chand as plaintiffs. Ramesh Chand was still a minor. He had given his age as 11 years and the suit was brought under the guardianship of his elder trother Om Prakash. The suit was for redemption of alleged mortgage deed dated 15.3.1953. In the alternative it was prayed that in case it was held to be sold, the suit may be treated for specific performance of contract for reconveyance.

(3.) ON the pleadings of the parties the trial court framed several issues. It held that the deed dated 15.3.53 was a sale deed and not at mortgage deed. It further held that defendant No. 1 was a bona fide purchaser for value. It then held that the suit for reconveyance was barred by time. Lastly it held that the pleadings in the plaint were not in accordance with Order 6 Rules 3 and 4 C. P. C. and there was no averment as prescribed in Form 47 Appendix A to the effect that the plaintiffs had been and were ready and willing to perform their part of the contract. With these findings the plaintiffs' suit was dismissed.