AYODHYA PRASAD Vs. PHULESARA

JUDGEMENT

(1.) HEARD Sri Aditya Narayan, learned counsel for the plaintiff-appellant and Sri Namwar Singh advocate for the defendant-respondents. Counsel for the appellant and contesting respondents have agreed that the appeal may be heard finally at the stage of admission itself since the Lower Court record is available.

(2.) THIS is plaintiff's second appeal against the judgment and order dated 10. 7. 1998 passed by Vth Additional District Judge, Varanasi in Civil Appeal no. 42 of 1996 confirming the judgment and order dated 23. 1,1996 in Original suit No. 251 of 1983 passed by Vth Additional Civil Judge (Junior Division), Varanasi.

(3.) THE relief claimed in the suit was for a decree of specific performance of contract. The plaintiff's case was that Timmal, ancestor of the defendant-respondents entered into an agreement for sale on 5. 8. 1974 for a consideration of rs. 9,500/-, Rs. 3,500/- was paid as earnest money and remaining amount of rs. 6. 000/- was to be paid at the time of execution of the sale deed. A time frame was fixed and it was also agreed that the sale deed will be executed by 30. 6. 1980. The plaintiff-appellant also claimed that possession was handed over as a part performance of the contract but subsequently he died on 30. 4. 1977. Timmal had no son but only five daughters. After the death of Timmal, the defendant second set inherited his property. According to the plaint, the said defendants had full knowledge about the agreement to sell but refused to abide by the contract. However, only defendant No. 8 executed a sale deed of her 1/5th share on 6. 4. 1983 but the defendant Nos. 4 to 6 did not do so, on the contrary they executed a sale deed in favour of the respondent Nos. 7 to 9 on 27. 1. 1983 in respect of their shares. The suit was contested by the defendants and plaint allegation was denied. The suit was dismissed and appeal against the said judgment also stands dismissed, a number of substantial question of law has been raised on which the submissions were made by the respective Counsels, are enumerated herein below :-