MIRZA MAHBOOB BAIG Vs. D VENKATNARASIMHA REDDY

JUDGEMENT

(1.) The judgment and decree in O.S.No. 188/1978 on the file of the Subordinate Judge at Karimnagar dated 31-1-1983 are assailed by the defendants. The suit of the plaintiff for specific performance of contract of sale dated 1-9-1978 in respect of the su it house and for recovery of possession has been decreed with costs.

(2.) The facts in brief are that appellant No. 1 is father of appellants No. 2 and 3 that there was an agreement of sale of the suit house between the respondent and appellant No. 1 for a consideration of Rs. 43,000/-, outof which an advance of Rs. 5,000/- was paid on the date of agreement and appellant No. 1 agreed to receive the balance of Rs. 38,000/- and to execute registered sale deed and to deliver possession of the suit house within one month that then the respondent requested appellant No. 1 several times to get a tenant who is residing in the shed in the suit house vacated, to receive the balance of consideration and to execute registered sale deed and deliver vacant possessionof the suithouse, but he failed to perform his part of the contract and that the respondent also sent a letter dated 27-9-1978 under certificate of posting demanding him to receive the balance of consideration and to execute the registered sale deed, but there was no response and finally a legal notice dated 22-11-1978 was issued to the same effect. Appellant No. 1 got sent an evasive reply asking for a photostat copy of the agreement of sale. The respondent has always been ready with the balance of consideration of Rs.38,000/- and offered to pay him several times and finally through a legal notice dated 22-11-1978 and sought for a decree for specific performance and possession.

(3.) Appellant No. 1 filed a written statement denying the material averments of the plaint. It is denied that there was an offer to sell the suithouse or that there was an agreement to sell for Rs. 43,000/-. The market value of the suit house is said to be not less than Rs. 1,25,000/-. It is further averred that the respondent approached him for letting the suit house on lease and he agreed to pay rent of Rs. 300/- per month and as the suit house required some repairs, appellant No. 1 asked him to payRs. 5,000/- in advance for the repairs and construction of eastern compound wall and thereupon the respondent agreed to the above terms and got a document prepared and paid Rs. 5,000/- as advance. The appellant No. 1 who is an old man and who has no knowledge of English, executed the said document thinking that it was a lease deed, but the respondent played fraud upon him and got an agreement of sale executed by him. Hence the said agreement is illegal, void and not binding. He denied that he received any letter sent under certificate of posting, but he admitted that he received legal notice dated 22-11-1978. The tenant who is residing in the shed is a necessary party to the suit.