KRISHNAS O SADASHIV KALE Vs. BHAGWAN NATHHU KALE

JUDGEMENT

(1.) THIS is an appeal by the original plaintiffs. The parties shall hereinafter be referred to as plaintiffs and defendants.

(2.) THE facts giving rise to this appeal are as follows -The plaintiffs and defendants are resident of Shivangaon. The defendant owns and possesses Khasra No. 95 and 97 of Shivangaon. Original defendant Raghoji was the owner of the suit property. He was an old man. He did not either have a wife or the children. He was, due to old age, unable to cultivate the land personally. He was, therefore, unable to derive enough income from the fields. He, therefore, wanted to sell the suit property. He therefore entered into an agreement of sale of two fields in favour of the plaintiff for consideration of rs. 16,000/ -. The plaintiffs paid Rs. 5,000/- to the defendants towards earnest. The sale deed was agreed to be executed on 20/2/1982. The plaintiff submits that he was always ready and willing to take the sale-deed and to pay the balance of the consideration. The plaintiff on 15/1/1982 and 19/1/1982 approached the defendant with a request to execute the sale-deed. The defendant, however, avoided to execute the sale-deed. The plaintiff, therefore, issued notice to the defendant calling upon him to execute the sale-deed. The defendant failed. During the pendency of the suit original defendant Ragho died. His legal representative who is his real brother was brought on record. Defendant no. 2 after the death of Ragho took the possession of the suit property and got his name mutated. Defendant no. 2 is the son of deceased Ragho's sister. The plaintiff learnt that ragho had executed a Will in favour of defendant no. 2 but, according to the plaintiff, the said Will is invalid and is a bogus document. The plaintiff, therefore, sought a decree for specific performance of the contract or in the alternative for the refund of the earnest money.

(3.) THE original defendant had filed his written statement. He admits that he does not have a family but submits that Bhagwan kale who is his nephew takes care of him and he treats him as his son. He denied that he has entered into an agreement of sale of field with anybody and he has received consideration of rs. 5,000/ -. The defendant submits that he and the plaintiff are related to each other. On 30/12/1981. the plaintiff's son came to the house of the defendant and compelled him to come to the plaintiff's house which adjoins the defendant's house. One Bakaram, Pandurang and Govindrao were already sitting there on the pretext that some assistance is to be taken from the Government for providing financial assistance to the defendant and for this his thumb impression was required. The plaintiff obtained the thumb impression of the defendant. The defendant being illiterate and old man could not see through the game of plaintiff. The notice given by the plaintiff was false. The plaintiff is not an agriculturist and is, therefore, not entitled to purchase the suit property.