RAYAGONDA ANNA PATIL Vs. JUNKIBAI

JUDGEMENT

(1.) THIS is plaintiff's appeal and it is filed against the judgment and decree passed by the learned Joint Civil Judge, (Senior Division) at Kolhapur in Special Civil Suit No. 17 of 1951. By this decree the learned Judge has ordered the suit of the plaintiff to be dismissed. The learned Judge has made no order as to costs.

(2.) THE plaintiff has filed the present suit, being Special Civil Suit No. 17 of 1951, for specific performance by execution of a pale-deed of an agreement which was arrived at between himself (plain tiff) and defendant No. 1 on 30th December 1945, and for possession of the suit properties or in the alternative to recover a sum of Rs. 32,840-10-0 as damages together with future interest and costs of the suit.

(3.) A few facts leading up to the present litigation may be stated. On 30th December 1945, an agreement took place between the plaintiff and defendant No. 1, which agreement was reduced to writing and was to the effect that defendant No. 1 would sell the properties referred to in the present suit to the plaintiff for a sum of Rs. 25,000 within four months from the date of the agreement. That agreement is at exhibit 123. It may be noted that prior to the date of this agreement defendant No. 1 had. filed suit No. 19 of 1941 for partition and possession against his nephew Dasarath and certain other persons. On the 31st July 1945, defendant No. 1 obtained the decree in that suit and it was a decree for possession. On the date of the present suit agreement, namely, dated 30th December 1945. defendant No. 1 passed a receipt for Rs. 22,500 in favour of the plaintiff. It was on that date (30th December 1945) that in pursuance of the agreement, which was arrived at on that day, the plaintiff paid a sum of Rs. 22,500 to defendant No. 1. The -agreement was to the effect that the balance of Rs. 2,500 was to be paid by the plaintiff to defendant No. 1 on the date upon which the sale-deed was executed. On the 26th April 1946, another agreement took place between the plaintiff and defendant No. 1. That agreement is at exhibit 124. This agreement referred to the prior agreement of the 30th December 1945 and also made a reference to the receipt exhibit 125 for Rs. 22,500 which the defendant No. 1 had passed in favour of the plaintiff. It was stated in this agreement that defendant No. 1 would execute the sale-deed within four months of obtaining possession of the property. It may be noted that by the agreement dated 30th December 1945, defendant No. 1 had undertaken to pass a document of sale within four months from the date of the said agreement, that is to say, before the 30th April 1946. That time limit was extended by the subsequent agreement dated 26th April 1946, exhibit 124, by which it was agreed that defendant No. 1 would execute the sale-deed within four months of obtaining the possession of the property. On 1st July 1946 a compromise application was filed in the Darkhast proceedings which were going on between defendant No. 1 and Dasarath. It may be noted 'hat in the meantime the appeal which Dasarath had filed from the decree, which was passed on the 31st July 1945 in the suit which was filed by defendant No. 1, had been dismissed. On the 12th July 1946 the compromise was sanctioned by the court. On the 16th April 1947, defendant No. 1 applied by Miscellaneous Application No. 4 of 1947 to the court to have the compromise arrived at in the Darkhast proceedings set aside on the ground of fraud. On 12th August 1949, the said miscellaneous application of defendant No. 1 was dismissed. Thereafter the present suit was filed by the plaintiff on the 19th February 1951, alleging that he (plaintiff) had come to know of defendant No. 1's having obtained possession of the properties towards the end of August 1949. As we have stated above, the suit is for specific performance of the agreements dated 30th December 1945 and 26th April 1946, whereby defendant No. 1 had agreed to sell the suit properties to the plaintiff, or in the alternative for the refund of the amount paid by the plaintiff to defendant No. 1 or for recovery of the said amount from the defendant No. 1 by way of damages.