TRIMBAK SHANKAR TIDKE Vs. NIVRUTTI SHANKAR TIDKE

JUDGEMENT

(1.) This appeal has got to be allowed on the narrow ground that the view taken by the learned Assistant Judge, who has clearly accepted all the contentions of the plaintiff but, all the same, has dismissed the plaintiffs suit for specific performance, is a hypertechnical view.

(2.) The facts are very simple. The plaintiff came before the Court contending that he himself and the defendant formed a joint family. Both of them had sold certain property to one Deoram Shivram Tidke. Out of the consideration to be received by both of them from Deoram Shivram Tidke, the defendant persuaded the plaintiff to take an amount less than what was receiveable by him as per his share in the property. The plaintiff took Rs. 7000/- less and correspondingly the defendant took Rs. 7000/- more in that transaction. In this manner, therefore, the plaintiff had given Rs. 7000/- to the defendant. In consideration of this amount the defendant entered into an agreement with the plaintiff to sell the suit property to him for the said amount of Rs. 7000/-. The plaintiff was even put in possession of the property. The defendant, however, would not help the plaintiff in getting the property transferred to the name of the plaintiff in the revenue records and he was adament in not executing the regular sale deed in his favour. Hence in the year 1976 the instant suit, namely Regular Civil Suit No. 296 of 1976, was filed by the plaintiff for specific performance of the said agreement dated 23-2-1973. The plaintiff also filed an application for injunction restraining the defendant from interfering with his possession of the suit property.

(3.) By his written statement Exh. 21, the defendant resisted the suit. In the written statement the defendant raised various grievances against the plaintiff; but the most astonishing fact is that the relevant averments made by the plaintiff in the plaint were nowhere denied by him in the written statement. The fact that in the transaction with Deoram Shivram Tidke the defendant had received a larger amount that was receiveable him and that the plaintiff had received a smaller amount than the one which should have been received by him to the extent of Rs. 7000/-, was not denied. Further the fact that on 22-3--1973 he in fact executed the agreement of sale in favour of the plaintiff was not denied by the defendant. The fact that the possession of the suit property was in fact made over to the plaintiff was not denied by him. All the same he wanted the suit to be dismissed.