RAMPRASAD CHANDULAL BRAHMAN Vs. SYED HUSSAIN

JUDGEMENT

(1.) Challenge in this appeal is to judgement rendered by learned District Judge, Jalna, in an appeal (R.C.A. No. 75/1981), confirming decree rendered by learned Civil Judge (J.D.), in Suit (R.C.S. No. 67/1975).

(2.) Deceased respondent No. 1 Syed Hussain was original plaintiff. Deceased appellant No. 1 was original defendant No. 1 and appellant No. 2 was original defendant No. 2, in the context of Suit (R.C.S. No. 67/1975). The Suit was for possession of agricultural fields bearing Gat No. 85, 86 and 87 which originally bore field Survey No. 41/2. The Suit was partly decreed to the extent of decree for recession of the contract of sale. The Suit was, however, dismissed to the extent of relief for recovery of possession. The first Appellate Court confirmed dismissal of the Suit for recovery of possession and also decree in respect of recession of the contract.

(3.) Briefly stated, the plaintiffs case before the trial Court was that he is owner of the field which originally bore Survey No. 41/2, admeasuring 7 acres 21 gunthas, situated at village Badnapur, under the then Tahsil Jalna. He agreed to alienate the suit field to deceased defendant No. 1-Ramprasad for consideration of Rs. 4500/-. The parties entered into an agreement of sale dated 12th July, 1951. He paid Rs. 2000/- by way of earnest amount at the time of said agreement. The rest of the amount was to be paid by deceased defendant No. 1 Ramprasad, at the time of execution of the registered saledeed. No time was fixed for execution of the sale-deed. Since the remaining amount was not paid within reasonable time, by notice dated 4th August, 1966, the deceased defendant No. 1-Ramprasad was called upon to pay the balance amount. He did not comply. By another notice dated 6-6-1968, the contract was rescinded and the deceased defendant No. 1-Ramprasad was called upon to restore possession of the suit field. The latter, however, gave a false reply alleging that he had paid full consideration amount. He also asserted that he was tenant of the suit field. The defendants No. 1 and 2 got divided the suit field amongst themselves into two (2) separate pieces bearing Gat Nos. 86 and 87. The Consolidation Officer has allotted Gat No. 85 to a small fragments of the field, comprising of two (2) gunthas, wherein a well is situated. Consequently, the Suit for recession of contract and recovery of the possession was laid.