KAMLABAI AND OTHERS Vs. RAMDULAR

JUDGEMENT

(1.) The original Defendant Nos. 1 to 3 have preferred this appeal. It is directed against the judgment, dated 23rd Aug., 1990 in Special Civil Suit No. 14 of 1988 delivered by Civil Judge, Senior Division, Wardha.

(2.) The plaintiff filed a suit for specific performance of the contract or alternatively, claimed refund as the earnest money. It is alleged by the plaintiff that he was in service of the State Transport Depot, Wardha and was residing in a block of the suit house as a tenant thereof on monthly rent of Rs. 150.00. The house originally belonged to Yeshwantrao Chavan, Tailor and after his death, the Defendant No. 1 was the sole surviving heir, who became the owner of the house. The rent was being paid to Defendant No. 1 whenever she and her husband Shankarsingh used to come to Wardha. The acknowledgement for receipt of the rent used to be signed by Shankarsingh in a note-book kept by the plaintiff. One Gulabsingh Thakur also used to come along with them being a relative. It is the case of the plaintiff that Shankarsingh desired to sell the suit house and, therefore, he asked the plaintiff as to whether he was ready to purchase. Upon willingness being shown by the plaintiff, the bargain is alleged to have been struck at Rs. 1,20,000.00 on 18th Oct., 1987. Shankarsingh is now dead. At that time, both Shankarsingh and Defendant No.l had come to receive the rent and the plaintiff paid the rent for months of Aug. and Sept., 1987. As the bargain was also struck for sale of the property, the plaintiff paid Rs. 5,000.00 to Shankarsingh in presence of Gulabsingh Thakur at the house of plaintiff on that very day. This payment was also acknowledged along with the payment of rent by Shankarsingh. The plaintiff then alleged that he bad agreed to Pay Rs. 20,000.00 on the next day, that is, on 19.10.1987 and upon its payment, Defendant No. 1 would reduce the agreement in writing. The plaintiff had, therefore, purchased the stamp paper of Rs. 10.00 through his brother-in-law, ShrikanL However, Shankarsingh left Wardha on the next day promising to execute the agreement in a short time. The plaintiff also visited Darwha to meet Shankarsingh and even at that time he was assured that the agreement would be executed when Defendant No. 1 Kamlabai and he himself would come to Wardha in Dec., 1987. An attempt to get the agreement executed was also alleged to have been made in Nov., 1987 when he and his friend Yadav had visited Darwha but the attempt could not succeed because Shankarsingh had been to Yavatmal for check up and bringing medicines. Upon his next visit to Darwha on 25.11.1987, the plaintiff learnt that Shankarsingh was dead. The Defendant No.l is alleged to have expressed her inability to execute the agreement because of mourning also on 5.12.1987 when the plaintiff is alleged to have visited Darwha on the Thirteenth Day along with Gulabsingh. At that time, assurance was said to have been given that she would come to Wardha in Jan., 1988, when she will do the needful. In the meanwhile, it is alleged that a news item appeared in the Marthi Daily "Lokmat" about the sale of the suit house. This was published by Defendant Nos. 2 and 3. They invited objections from persons having interest in the suit property. The plaintiff is stated to have informed Defendant Nos. 2 and 3 that he had a prior claim to the property by virtue of having paid Rs. 5,000.00 as earnest money in furtherance of an agreement to purchase the house from Defendant No. 1 Kamalabai. The plaintiff then alleged that he was always ready and willing to purchase the suit property by performing his part of the contract and is still willing to do so. With the publication of notice in the newspaper by Defendant Nos. 2 and 3, the plaintiff filed the suit to avoid further complications. The application for grant of temporary injunction restraining Defendant No. 1 from executing the sale-deed in favour of Defendant Nos. 2 and 3 was also filed.

(3.) The claim was contested by Defendant No.l by filing her written statement. She admitted the fact that the plaintiff was in occupation of the Northern Block in the suit house as her tenant paying monthly rent of Rs. 150.00. The Southern Block was in her occupation. The rent was collected by Defendant No. 1 and her husband Shankarsingh. The receipt of rent was acknowledged by Shankarsingh in a note-book kept by the plaintiff. The relationship with Gulabsingh Thakur was denied. The Defendant No. 1 then denied that Shankarsingh entered into any agreement with the plaintiff for sale of the suit house. It was also denied that the plaintiff showed willingness and the bargain was struck at Rs. 1,20,000.00 on 18.10.1987. She further pleaded that on 17.10.1987 Shankarsingh was discharged from the hospital at Nagpur and they both came to Wardha and stayed in the block. The rent was collected for months of Aug. and Sept., 1987 on the next day, that is, on 18.10.1987 and receipt was acknowledged in the note-book. In the afternoon of next day, they left for Darwha. She hence reiterated that no bargain took place between the plaintiff and Shankarsingh in respect of the suit house nor any amount of Rs. 5,000.00 was paid in presence of Gulabsingh. She specifically denied Shankarsingh having acknowledged the receipt of Rs. 5,000.00. Only the rent receipt was acknowledged by Shankarsingh. The Defendant No. 1 further denied that a sum of Rs. 20,000.00 was agreed to be paid by the plaintiff to Shankarsingh on 19.10.1987 and upon such payment the Defendant No. 1 agreed to reduce the agreement in writing. The alleged purchase of Rs. 10.00 stamp paper by plaintiff through his brother-in-law is also denied. The Defendant No. 1 further refuted the allegations that Shankarsingh left Wardha on the next day promising to execute the agreement of sale shortly thereafter. The meeting of the plaintiff with Shankarsingh at Darwha was also denied and giving of promises was out of question. The alleged visit of the plaintiff to Darwha in Nov., 1987 was also denied. The Defendant No. 1 also refuted the allegations about the plaintiff's visit to Darwha on the occasion of 13th day ceremony of Shankarsingh which fell on 5.12.1987. No promise or assurance is stated to have been given by Defendant No. 1 that she would execute the agreement in Jan., 1988 after receiving Rs. 20,000.00 more.