SUNDER BAI Vs. NONIT RAM

JUDGEMENT

(1.) Plaintiff aggrieved by judgment and decree passed by lower Appellate Court has filed present appeal, Trial Court decreed the suit of plaintiff but the lower Appellate Court while reversing the judgment and decree of the trial Court, directed the plaintiff to pay Rs. 4000/- towards the remaining consideration of sale.

(2.) This appeal was admitted on 15-1-1990 on following substantial questions of law :

(3.) In short, facts are that on 17-1-1981 present suit was filed on the ground that the plaintiff is the owner of Survey No. 3, area 8.51 acres at village Mandi Bomora, Tahsil Khurai, District Sagar, Defendant with the permission of plaintiff constructed a Kachcha Tapra on a piece of land measuring 20/10 ft. and assured that rent will be settled. Thereafter, some more land was encroached and ultimately defendant has encroached over 50 X 40' land. On 19-10-1975 defendant entered into an agreement to purchase the aforesaid land for a consideration of Rs. 6033/- and paid Rs. 714/- as earnest money and remaining Rs. 5319/- was to be paid on or before 13-5-1976 and sale-deed to be executed on the same day. It was further agreed between the parties that on failure to get executed the sale-deed after payment of remaining consideration, defendant will vacate the land and the advance given by the defendant will be forfeited in favour of plaintiff. A written contract was executed by the defendant in favour of plaintiff on which defendant put his signature. It is alleged that thereafter remaining amount was not paid and no sale-deed was got executed by the defendant. Plaintiff served a notice dated 5-6-76 which was replied by defendant on 16-6-76 alleging that the total price settled was Rs. 5000/- out of the which Rs. 1000/- was paid by way of advance, plaintiff has not get diverted the land. On this ground the defendant denied the agreement. Against plaintiff served a notice dated 13-9-1980 but the defendant neither replied the notice nor has handed over possession of the land. Thereafter suit was filed for possession and mesne profits from December, 197 7/11/1980, at the rate of Rs. 50/- per month.