MALKARJUN SIDRAMAPPA BALKOTHE Vs. KASHIBAI

JUDGEMENT

(1.) THIS is plaintiff's appeal against a decree passed by learned Civil Judge, Senior Division, Solapur in Special Civil Suit No.138 of 1975 refusing to grant a decree of Specific performance of contract of sale in favour of the appellants/plaintiffs and passing a decree only for refund of earnest money with interest amounting to Rs.18,000/- and future interest at the rate of 12 per cent on the amount of earnest money of Rs.15,000/- alongwith costs of the suit with a charge on the suit property for the entire decretal amount. Out of the original plaintiff/appellant No.1 is reported to have died during pendency of the appeal and his heirs are brought on record. The appellant No.2 is his real brother. Defendants are the legal heirs of one Baburao Tamshetti and out of them defendant Nos. 1 and 2 are widow and son of deceased Baburao respectively. Where as defendant Nos. 3 to 7 are the daughters of deceased Baburao who are by now married and are reported to be living with their respective husbands.

(2.) THE suit property consists of agricultural land Survey No.144/2 having an area of 5 hectors and 22 R. which is approximately 13 acres and some gunthas and situated at Solapur. According to the plaintiffs deceased Baburao entered into an agreement of sale in respect of the aforesaid land with the plaintiffs for the consideration of Rs.45,000/- and he executed an agreement of sale on 22nd April 1974 on receiving Rs.15,000/- by way of earnest money. It was agreed that the possession of the land would be given to the plaintiffs at the time of execution of the sale deed which was to be executed within a period of three years. The land was sold alongwith two wells in one of which the vendor had half share and the other well was fully owned by him. It is also an admitted position that there were three electric motors fixed on two wells and the price of Rs.45,000/- was inclusive of electric motors pipeline and rights to the two wells. It was also agreed that deceased Baburao would obtain the permission of the Collector or Revenue Authority before the execution of the sale deed, in case it was found that the permission was necessary. The expense of execution and registration of the sale deed were to be shared equally by the parties.

(3.) IN the alternative the plaintiffs have claimed that in case the court finds that they are not entitled to a decree for a specific performance, then defendants be directed to refund Rs.15,000/- with interest and notice charges amounting to Rs.18,395/-, and be further directed to pay future interest.