SATISH KUMAR Vs. JAGDAMBA PRASAD

JUDGEMENT

(1.) THIS is a second appeal by the plaintiffs under section 100 of the Code of Civil Procedure (to be called as 'Code' only).

(2.) LATE Mathura Prasad had two sons. Satish Kumar (A 1) and Ramesh Kumar (who died in year 1988 whose widow Smt. Shashikala is A 2). Late Mathura Prasad had executed a sale -deed on 15.9.1960 in favour of Dayashankar son of Ramnath Choubey for Rs. 2,000/ -. A rent -note was also executed by late Mathura Prasad on monthly rent of Rs. 40/ -. An agreement for reconveyance was simultaneously executed which was renewed on 14.9.1962. On 9.1.1963 said Dayashankar son of Ramnath Choubey and late Mathura Prasad executed a sale -deed in favour of Jagdamba Prasad (R 1) for Rs. 2,500/ -.

(3.) ON the other hand, both Jagdamba Prasad (R 1) and Dilip Kumar (R -2) in their joint written statement disclaimed that either of the sale -deeds executed on 15.9.1960 or 9.1.1963 was mere security for loan. It was claimed that sale in favour of Jagdamba Prasad (R 1) was an out and out sale with facility for re -conveyance. Late Mathura Prasad had sold his right of conveyance also. Late Mathura Prasad was tenant of Jagdamba Prasad (R 1) on monthly rent of Rs. 50/ -. On 16.12.1965 Satish Kumar (A 1) and his bother Ramesh Kumar (since dead) had paid Rs. 1,800/ - as arrears of rent and Rs. 170/ - as cost of extra facility. An agreement for re -conveyance was reduced on 16.12.1965. It was claimed that both the brothers had vacated the suit house on 1.6.1967 and Kedar Nath Choubey, the brother of Kailash Chandra Choubey (R 3) was inducted as a tenant on monthly rent of Rs. 50/ - which was enhanced to Rs. 100/ - in due course. Anyhow it was claimed that Kailash Chandra Choubey (R 3) had left the suit house in August 1989 inducting the appellants as his sub -tenants. It was further claimed that suit for specific performance of contract was badly barred by limitation. Prices of immovable property had risen and now it will be unfair and inequitable to grant any such specific performance.