MARUTI APPAJI RASAI Vs. VITHAL KISHAN JAGDAND

JUDGEMENT

(1.) This appeal is directed against a decree for possession vis-a-vis agricultural lands bearing Survey Nos. 4/1, 7/1 and 22 situated at village Gevrai, Taluka and District Beed.

(2.) The questions that arise for determination in this appeal have to be considered in the background of the following facts : - The lands in suit formerly belonged to Kishan Narayan Jogdand whose children are the plaintiffs. Kishan passed a document described as all "Isar Pawati" in the name of defendant No. 1 on 17-9-1953. The agreement recited that Kishan had received Rs. 2,000/- as earnest and that on receipt of the balance of Rs. 1,000/- he would pass a sale-deed in favour of defendant No. 1. It was further recited that in part performance of the agreement, defendant No. 1 had been placed in possession of the lands. Regular Civil Suit No. 212 of 1959 was brought by defendant No. 1 against Kishan for specific performance ot the agreement afore-mentioned. Kishan contested the suit and the trial Court dismissed the same. That led defendant No. 1 to prefer Regular Civil Appeal No. 213 of 1960 to the District Court at Beed. The District Judge who heard the appeal, allowed the same and passed a conditional decree reading thus : -

(3.) The defence based upon Section 51-A of the Transfer of Property Act is untenable. In the past, defendant No. 1 had got the verdict of the District Court sustaining the said defence, but subject to the performance of certain obligations by him. These obligations, set out in the conditional decree, not having been performed, the action stood dismissed with costs. The failure to perform the conditions imposed upon defendant No. 1 within the stipulated time, Suffices to negative the so-called readiness and willngness of defendant No. 1 to perform the terms of the agreement and thus be in a position to seek protection of his possession under Section 53-A of the Transfer of Property Act. The least that can be said is that the professed desire to perform the agreement is a pretence, for had there been any truth in that protestation, defendant No. 1 would not haVe allowed the conditional decree to operate against him.