RAJARAM DEORAM PATIL Vs. FULCHAND JASRAJ JAIN

JUDGEMENT

(1.) The appellants/original defendants impugns the judgment and decree dtd. 16/6/1995 passed by the Additional District Judge, Amalner in Regular Civil Appeal No.606 of 1989, thereby upholding the judgment and decree dtd. 7/10/1989 passed by the Civil Judge J.D. Chopda in Regular Civil Suit No.28 of 1987 by which suit of respondent/plaintiff seeking decree of specific performance of contract has been decreed.

(2.) Respondent/plaintiff filed R.C.S. No.28 of 1987 seeking relief of specific performance of contract and possession against appellant/defendant in respect of Survey No.38/2 situated at Village Chaugaon, Tq. Chopda, District Jalgaon. It was contention of plaintiff that defendant entered into an agreement dtd. 23/4/1974 in respect of suit land for consideration of Rs.8,000.00 (Rs.Eight Thousand). The agreement was registered on very same day. Defendant agreed to obtain permission of competent authority for sale of land as provisions of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short Consolidation Act) were made applicable to the suit land. Inspite of execution of agreement to sale, defendant took no steps to execute the sale-deed. On 21/7/1986 plaintiff sent registered notice to defendant and called upon him to execute the sale-deed. Plaintiff was ready and willing to get executed sale-deed, but, defendant failed to perform his part of contract. Even, he retained possession of the suit property after receiving entire amount of consideration. Eventually, suit was instituted for specific performance of contract and possession.

(3.) Defendant refuted plaintiff's claim denying agreement to sale. He pleaded that land is his ancestral joint family property. His brother Vishram and others are not added as party to the suit. According to him, valuation of suit land in the year 1974 was more than Rs.60,000.00 and it is highly improbable that defendant would agree to sell the land for Rs.8,000.00. Defendant further contend that in the year 1967 he had obtained loan from the bank for excavation of well. Land was mortgaged to the Bank and it was at the verge of auction. Defendant approached plaintiff and obtained hand loan of Rs.5,500.00 to satisfy bank loan. Agreement to sale was executed by way of security for hand-loan. Plaintiff took income from land for the year 1974-1975 to 1977-1978 and same has been adjusted towards loan amount. Agreement to sale has been misused for filing the present suit. It is further contended that the suit is barred by limitation.