NARBDESHWAR UPADHYAY Vs. RAM BAHAL

JUDGEMENT

(1.) THIS is plaintiff's second appeal arising out of a suit for specific performance of an agreement for sale of an agricultural plot. The trial court had decreed the suit. On appeal the decree of the trial court was reversed and the suit was dismissed. Aggrieved by the decree passed by the lower appellate court the plaintiff has filed this second appeal.

(2.) THE suit was initially brought against Bhagwan Mani Tripathi, who died during the pendency of this second appeal and is now represented by Satya Prasad, the respondent no. 5. During the pendency of the suit, the defendant no. 1 transferred the property in favour of defendants no. 2 to 7, including his son Satya Prasad arrayed as defendant no. 5. THE disputed property comprises of four plots, viz. plot no 162, 163, 220 and 223, having an aggrigate area of 5.17 acres. THE plaint case was that Bhagwan Mani Tripathi had agreed to sell the aforesaid plots in favour of the plaintiff at the rate of Rs. 4000/- per bigha for the total consideration of Rs. 34,000/- under an agreement of sale dated 3-6-1969 and received Rs. 18,300/- from the aforesaid as part consideration of the sale. In pursuance of that possession was also delivered to the plaintiff over the entire area of 5.17 acres. Under the agreement the sale was to be effected in three stages ; first, by November 1969 for which Rs. 7,700/- was to be paid in cash, second was to be affected by April 1970 and the third was to be executed by November 1970 for a total consideration of Rs. 14,000/- out of which Rs. 10,000/- was to be adjusted against the earnest money deposited with the defendant and Rs. 4,000/- was to be paid in cash. In pursuance of this agreement a sale deed was executed on 15-11-1969 for a total consideration of Rs. 16,000/- part of which was adjusted against the earnest money and the remaining part was paid by a cheque and some amount in cash. THE second sale deed was executed in terms of the agreement on 20-4-1970 for Rs. 4,000/- which was to be paid in cash. THE defendant, however, refused to execute the third sale deed by November, 1970. Instead, he filed suit no. 1294 of 1970 for the cancellation of the first two sale deeds. That suit was contested by the plaintiff and the same was dismissed. After the dismissal of the suit the plaintiff sent out two insured covers of Rs. 1000/- and 1200/- to the defendant as well as a notice dated 13-12-1972 calling upon the defendant to execute the third sale deed. THE defendant did not comply with that notice. THEreafter, the suit was filed on 5-11-1975, i. e. nearly three years after the aforesaid notice was given to the defendant.

(3.) THE learned Civil Judge accepted the case of the plaintiff and decreed the suit. THE appellate court however, disagreed with the trial court and on an elaborate consideration of the evidence existing on the record, it has come to the conclusion that the case set up by the plaintiff was unworthy of reliance. No such agreement was executed nor was any earnest money paid to the defendant as alleged by the plaintiff. THE appellate court has pointed out the circumstances which in its opinion give a complete lie to the plaint case touching upon the genuineness of the agreement of sale set up by the plaintiff. THE plea that the defence of the respondents was barred by res-judicata in view of the findings recorded in suit no. 1294 of 1971 has also been rejected by the lower appellate court relying on several decisions of the Supreme Court directly in point.