NARENDRA Vs. TULSABAI AND ORS.

JUDGEMENT

(1.) Being aggrieved by judgment and order dated 29.01.2014 passed in Regular Civil Appeal No. 54/2005, passed by District Judge-1, Pandharkawda, thereby confirming judgment and order dated 20.04.2005 in Regular Civil Suit No. 140/2000, passed by Jt. Civil Judge (Junior Division), Wani by which the suit filed by the appellant-plaintiff was dismissed and the counter claim was partly decreed directing delivery of possession of the suit property to the defendants, the present appeal has been filed by the unsuccessful plaintiff.

(2.) The plaintiff-appellant filed a suit for specific performance of contract in respect of field survey No. 77/1 area 1.81 HR owned by deceased Bapurao istari Parshive, Rajeshwar and Vitthal Bapurao Parshive. The deceased Rajeshwar and Vitthal were the sons of the deceased Bapurao. According to the plaintiff, by agreement dated 14.01986, all the three, Bapurao, Rajeshwar and Vitthal had agreed to sell the suit land to the plaintiff for Rs. 45,000/- and he had paid in all Rs. 30,400/- from time to time. It was agreed that the sale deed would be completed on 30.04.1987 and that is why possession was handed over to the plaintiff. A Regular Civil Suit No. 134/1986 was filed by a Cooperative Society for claiming dues from the deceased Rajeshwar and there was a prayer for injunction from selling the suit land and that Rajeshwar had given an undertaking not to alienate the suit property. According to the plaintiff, because of the pendency of the civil suit, the registered sale deed could not be executed and finally suit was dismissed on 30.04.1994. It is, thereafter by notice dated 204.1987, the proposed vendors were called upon to execute the sale deed. By that time, all i.e. Bapurao, Rajeshwar and Vitthal had died and the suit obviously was filed against the widow of Bapurao who also died during the pendency of the suit and the legal heirs were added as defendants.

(3.) In support of the appeal, Mr. Khajanchi, learned counsel for the appellant, submitted that by conduct of the original proposed vendors, the time was never the essence of contract and the suit property being the immovable property and the appellant-plaintiff having paid the substantive amount of Rs. 30,400/-, out of Rs. 45,000/-, there was no reason not to grant relief of specific performance as claimed. He then submitted that the courts below committed error in holding that there was no readiness and willingness for performing their part of contract. He, relied upon decision in the case of Biswanath Ghosh (dead) by Lrs. And others vs. Gobinda Ghosh Alias Gobindha Chandra Ghosh and others; , 2014 (3) SCALE 630 and prayed for allowing the appeal.