DEORAM BHIKA CHAUDHARI Vs. DATTU GANPAT PACHARNE

JUDGEMENT

(1.) THE present appeal is filed by original defendant no.1 taking exception to the judgment and decree dated 18th July, 1985 passed by the Extra Joint Judge, Nasik in Civil Appeal No.140 of 1982. The respondent no.1 Dattu (since deceased now represented by his heirs) is the original plaintiff in Regular Civil Suit No.134 of 1974. The said suit is filed for specific performance of the agreement in respect of the land described in para 1 of the plaint. According to the plaintiff, suit land stood in the name of defendant nos.1 to 3 Defendant No.1 being karta has agreed to sell suit land - bearing gat no.1648 for Rs.1600/- and has executed the agreement dated 29th May, 1972. The plaintiff alleged that Rs.1500/- was paid as earnest money. He further alleged that he has paid Rs.50/- on 4th April, 1972 and another Rs.50/- on 11th November, 1972. Thus he has paid whole consideration and was put in possession of the suit land in the year 1972.

(2.) THE defendant no.1 by his written statement dated 17th April, 1975 and defendant nos. 2 and 3 by their written statement dated 28.6.1975 and 17.4.1975 respectively resisted the claim. The defendants denied that the defendant no.1 was karta of the joint family and any time was authorised to convey the suit property. The execution of the agreement for sale was denied. The defendant no.1 has stated that he was in need of money to meet the expenses of litigation in tenancy court in respect of the suit land and for construction of a well in the suit land. He was in need of money and he borrowed the amount from the plaintiff. That the plaintiff insisted upon execution of the agreement, which was nominal and was not to be acted upon. The defendants stated that they are in possession of the suit land and that the plaintiff is not entitled for specific performance.

(3.) THE plaintiff challenged the said decree by way of civil appeal No.140 of 1982. The appeal court by its judgment and decree dated 8th July, 1985 allowed the appeal by setting aside the decree passed by the trial Court. The appeal Court has held that the plaintiff is entitled for specific performance in respect of gat no.1648 only to the extent of 2/3rd and said sale deed is to be executed by defendant no.1 on receiving the balance consideration of Rs.270/-. Suit against defendant nos. 2 and 3 was dismissed. The defendant no.1 has challenged the said decree byway of present appeal.