DULARI BAI Vs. RAMESHWAR DAYAL SHRIVASTAVA

JUDGEMENT

(1.) Feeling aggrieved by the judgment and decree dated 04.08.1995 passed by learned Second Additional District Judge, Hoshangabad in Civil Suit No.19-A/1991 (Old No.91-/1986) whereby the suit of plaintiff-respondent has been decreed, this appeal under Section 96 of the CPC has been filed by the defendants no.1 to 4-appellants.

(2.) In the Trial Court the suit has been filed by Rameshwar Dayal Shrivastava against Prem Narayan alias Rabude however during the pendency of the suit the defendant died and present appellants as well as respondent no.2 Smt. Sangeeta were brought on record as defendants, however, the fifth defendant (respondent no.2) Smt. Sangeeta was proceeded ex parte.

(3.) The facts in compendium are that a suit for specific performance of contract has been filed by the plaintiff-first respondent in respect to a double-storeyed house, the description whereof has been mentioned in the plaint and which is the subject matter of the suit. According to the plaintiff in order to contest the election the original defendant Prem Narayan was in need of money, as a result of which, he gave an offer to the plaintiff to purchase his house for a consideration of Rs. 25000/- which was readily accepted by the plaintiff-respondent. Thereafter, on 17.04.1980 a registered agreement of sale was executed between the parties in which it has been stated that today i.e. 17.04.1980 the original defendant has obtained a sum of Rs.22,984/- towards advance money and balance amount of consideration Rs.2016/- would be paid within three year latest by 17.04.1983 and thereafter the sale-deed can be executed and the possession would also be delivered at that time. It was also agreed between the parties that the possession of the house in question will be delivered to plaintiff after getting the tenant evicted from the suit shop. When the original defendant failed to get the sale-deed executed, on 28.05.1983 a notice was sent to him by the plaintiff to get it executed. But, the original defendant requested that because at present he is unable to get an alternative residential accommodation for him and his family members and hence requested on humanitarian ground to provide some more time to get the sale-deed executed. Thereafter on 05.07.1983 another agreement of sale was executed between the parties wherein it has been mentioned by defendant that since still he could not arrange an alternative residential accommodation, therefore, furhter period of one year more may be provided to execute the sale-deed. This agreement was notarized. When the original defendant did not execute the saledeed, again an agreement was executed acknowledging the earlier execution of agreements of sale and this was also stated in the said document that although in the agreement dated 05.07.1983 the original defendant sought time to execute the sale-deed but because again alternative residential house was not found, therefore, again time of one year was sought to execute the sale-deed. In the agreement dated 23.06.1984 it has been mentioned that additional sum of Rs.16/- has also been paid towards advance by the plaintiff which has been received by original defendant Prem Narayan and he is only required to obtain balance consideration of Rs.2000/-. Thereafter another agreement was executed by said Prem Narayan on 11.10.1985 wherein it was agreed by the defendant to get the sale-deed executed of the disputed house in favour of plaintiff upto 17.04.1986. But when the defendant failed to perform his part of contract after sending a registered AD post notice to him on 12.04.1986 and also on 07.10.1986 the plaintiff has filed the present suit for specific performance of contract.