RAMCHANDRA MARUTI BHOYAR Vs. RAMESH NARAYAN GAWANDE

JUDGEMENT

(1.) BY this appeal, the appellant has challenged the judgment and order dated 5th May, 1979 passed by the Extra Assistant Judge, akola in Regular Civil Appeal No. 145 of 1976.

(2.) THE facts, in brief, which have led to the filing of present appeal are as under: present respondents No. 1 and 2 viz. Ramesh and Vitthal both sons of narayan Gawande filed Regular Civil Suit No. 70 of 1972 for declaration and for consequential reliefs and in the alternative for partition and separate possession. Suit was filed against present appellant and Narayan Bapuji Gawande and pisabai w/o Narayan Gawande, since deceased and who were arrayed as respondents No. 3 and 4 herein. Parties shall hereinafter be referred as per their original status in suit.

(3.) EARLIER to that, defendant No. 3 Ramchandra Maroti Bhoyar had filed regular Civil Suit No. 37 of 1966 against defendant No. 1 Narayan for specific performance of contract before the Civil Judge, Junior Division, Murtizapur alleging that defendant No. 1 had executed an agreement to sell dated 21-8-1963 agreeing to sell 4 acres of land out of survey number 79 situated at mouza akhatwada, Tahsil Murtizapur, District Akola for a consideration of Rs. 1000/-out of which defendant No. 3 had paid Rs. 750/- by way of earnest money and rest of the consideration was payable at the time of registration of sale which was scheduled on or before 28-1-1964. Since defendant No. 1 failed to execute sale deed, defendant No. 3 was constrained to file the said civil suit. That suit was initially contested by defendant No. 1 Narayan alleging that the transaction was an outcome of money-lending transaction. However, in the said suit there was compromise by and between the parties vide pursis dated 10-2-1969. In that, it was agreed that defendant No. 3 (plaintiff therein) shall pay Rs. 900/- to defendant No. 1 (defendant therein) and upon such payment defendant No. 1 shall execute sale deed in favour of defendant No. 3. It is not disputed herein that defendant No. 3 Ramchandra had received possession of suit land through the court.