HASAM NURANI MALAK Vs. MOHANSINGH

JUDGEMENT

(1.) THESE two cross-appeals, one filed by the defendnat and the other filed by the plaintiffs arise out of a decree passed by the Civil Judge. Senior Divisons. Wardha decreeing the calim for specific performance of a contract of resale and directing the plaintiffs to deposit in Court Rs. 9,000/- plus Rs. 8,100/- on account of interest for payment to the defendnat within six months fromt he date of the decree. Admittedly the plaintiffs were the owners of filed khasra No. 96 area 6. 95 acares in Bhumiswami rights situated at Jawoorwada. Tahsil Arvi. District Wardha. On 7. 3. 1957 the plaintiff executed a sale deed for a consideration of Rs. 9,000/- in respect of this field in favour of the defendant. The filed was already in possession of the defendant under a registed leas edeeed dated 5. 6. 1952 by which the right to pluck and remove the fruit from the garden or orange musambi, lemon and guava trees in the filed was transferred to the to the defendant for a period of five years from 1952-53 to 1956-57 foir a consideration of Rs. 7,000/ -. The defendant was also entitled to pluck and remove the pails fromt eh said garden for the period 1957-58 to 1960-61 by naother agreement of the same date. On the date on which the sale deed was executed by the plaintiffs. The defendant also executed an agreement of reconveyance by which the plainitffs were entitled to obtain reconveyance of the said property on payment of the consideration of Rs. 9,000/- plus interest at 1 1/2 per cent. per month within five years from the date of the agreement. The agreement of reconveyance. According to the plaintiffs, they had offered to execute a mortgage by conditional sale or a usufructuary mortgage as they were already indebted to the defendant and they were in need of additional funds and though the defendant had agreed to take a mortgage by conditional sale or a usufructuary mortgaged, he insisted that the transaction though a mortgage, should be givne the shape of a sale with the condition of repurchase. According to the plaintiffs, they were entitled to get a resale after taking accounts of the income made by the defendant from the garden, but having found that the defendant dishonestly wanted to take advantage of the sale and the kararnama the plaintiffs even offered to pay the entire amount as stated in the kararnama in the first week of Mrach 1962. They had given a notice to the defendnat calling upon him to rener accounts but according to the plaintiffs, the defendant refused to abide by the real transaction or by the transaction as shown in the aforesaid sale deed and kararnama. The plaintiffs, therefore alleged int heri plaint that the defendant was guilty of breach of contract and they, therefore, claimed Rs. 6,000/- as damages for the year 1962-63 during which period the defendant was not entitled to remove the fruit from the garden. The plainitffs, therefore, claimed that the defendant be directed to execute a sale ded of field khasra No. 96 on receipt of the amount stated in the Kararnama dated 7. 3. 1957, or such amount as may be determined by the Court and place the plaintiffs in possession thereof and further to pay theplaintiffs Rs. 6,000/- on account of mesne profits as claimed.

(2.) IN his written statement, the defendant pleaded that the previous transactions between on the parties were not relevant to the claim for specific performance of the contract of resale and for damages. According to him,t ime was of the essence of the contract of repurchase, and since the plaintiffs fialed to onbtain a reconveyance of the filed on or before 7. 3. 1962, the plaintiffs were not entitled to any relief. it was denied that the plaintiffs wanted to makje any payment as stipulated in the kararname. the defendnat denied that he was liable for damages for breach of contract and accoridng to him he was in possession of the field as onwer there of and that he was always ready and willing to abide by th terms of the kararnama. The defendnt further submitted tha twhile supplying better particualrs asked for by the defendnt, the plaintiffs had categorically stated that the suit was for enforcing the kararnama dated 7. 3. 1957 and, thereofer, the suti as framed was liable to be dismissed.

(3.) THE trial Court found that time was not of the essence of the agrteement of reconveyance of the suit proeprtuy and that the plainitff's claim was tenable. It held that evidnece so as to vary the terms embodied in the kararnama dated 7. 3. 1957 could not be admitted and the plainitffs could not therefore claim that they were entitled to accounts from the defendant of the income received by him from the suit filed in terms of hte earlier two elases and to adjust that amount towards consideration due under the kararnama. It found that the plaintiffs were entitled to claim any damages from the defendnat. The trial Court thus passed a decree that the plainitffs shall deposit in Court Rs. 9,000/- polus Reupees 8,100/- on account of interest upto 9. 3. 1962 and that on deposit of this amount of Rs. 17,100/- the defendant ws to execute a sale deed of the suit field in faovur of the plaintiffs and put them in possession of the smae. It was also directed that if the defendnat failed to do so, the plaintiff may apply to the court for getting the sale deed executed through Court.