S M ANSARL Vs. VEJENDLA SUBBA RAO

JUDGEMENT

(1.) The plaintiff appellant is a retired Army Captain residing at Chandole in Guntur District. He conceived the idea of constructing a Cinema Hall in Nidubrole in the same District, Nidubrole had already two Cinema Homes. The defendant is a Medical Practitionor resid'ng in Chandole Under Ex A-8 dated 19-3-1961, the defendant had purchased a site of an extent of ?5 3/4 cents in Nidubrole from one Kothamasu Padmayathy. The plaintiff himself had owned about 10 cents immediately opposite to this site. The plaintiff and the defendant entered into an agreement, Ext A-1 dated 31-10-1962 for the sale of the site purchased by the defendant under Ex. A-8. As per this agreement, the extent of the sice is mentioned as about 29 cents. The price agreed upon was Rs. 1175/- percent. Asum of Rs. 4,000/- was paid on the date of the agreement as 'Bayana'. It was agreed that the corsideration should be paid at the rate for the extent of the site found on actual measu ement The balance of the consideration was to be paid within 1 months i e by 15-11-1962. in case the purchaser committed default in payment of the balance of consideration, interest was to be paid by him at one percent per mensem as and from the due date Possession of the sue was to be given to the purchaser on the date of the registration of the sale deed.

(2.) However, the sale deed was not executed before 15-12-1962, The plaintiff had paid the defendant towards the balance of consideration payable, Rs 4,000/-on 16-11-1962. Rs. 115,00/- on 3-2-1962, Rs. 3,000/- on 12-3-1963 and Rs. 4,000/- on 11-6-1963. Thus, inclusive of the 'Bayana' paid on the date of the agreement, the plaintiff paid to the defendant in all asum of Rs. 26,500/-. On 15-10-1965, the plaintiff through his Advocate Issued a notice In English to the defendant In this notice, the plaintiff had referred to the execution of Ex. A. I and that he had paid in all a sum of Rs. 26,500/- including what he called the earnest money of Rs. 4000/- paid on 31-10-1962. It was averred in this notice that the plaintiff got the suit site measured on 9-9-1965 in the presence of the defendant and to his utter chagrin and disappointment, the area was only 25 cents and that the defendant had really purchased 25-3/4 cents from the previous owner Padmavathy. He accused the defendant of deciving him and committing fraud by false representation that he had purchased 29 cents from his vendor. It was only on he strength of such a representation the plaintiff had agreed to purchase the site at huge Cos, He also accused the defendant of cheating. He expressed that 25 cents of land was insufficient for constructing a Cinema Hall and stated that he was rescinding and repudiating the contract dated 31-10-1962 and called upon the defendant to return the sum of Rs. 26,5000/- paid with interest thereon within a week, failing which a suit would be filed for recovery of the amount. On 25-10-1965, the defendant sent a reply stating that he had sent an Express Telegram on 18-10-1965 requesting the plaintiff to send him a copy of the contract of sale and that no reply wa sent. The present suit was filed by the plaintiff on 30-10-1965

(3.) in the plaint, the plaintiff claimed In all asum of Rs if 501/- inclusive of interest on Rs. 26,500/~ paid from teh date of payment at 5 per cent and also a sum of Rs 1,000/- towards the amount spent by the plaintiff as preliminary to the construction of the Cinema Hall. He claimed to have spent on 14-12-1965 this sum of Rs. 1,000/- for the services of an Engineer from Guntur and also the blue prints of the theatre prepared