KANHAIYALAL Vs. ABDUL HUSSAIN

JUDGEMENT

(1.) This appeal under Cl.10 of the Letters Patent has been directed by the defendant-appellant against the judgment dt. 2nd Feb. 1980, passed by the learned Single Judge of this-Court, in First Appeal No. 30 of 1966 affirming the judgment and decree dt. 30th Jan. 1969 in Civil Suit No. 5 of 1960, passed by the Additional District Judge. Mandsaur, in Civil Suit No. 5 of 1960, rescinding the contract for sale of agricultural land in respect of which a decree dt. 29th Sept. 1961 for specific performance of contract was passed by the same Court in the same civil Suit No. 5 of 1960.

(2.) The facts as they emerge out of this appeal are that late Mulla Abdul Hussain by an agreement dt. 25th May, 1958, had contracted to sell his agricultural land to defendant-appellant Kanhaiyalal of Khata No. 16 comprising an area of 12.92 acres, situated in village Geroth, district Mandsaur together with well and trees, standing thereon for a consideration of Rs. 20.000/-. On the date of the aforesaid agreement a sum of Rs. 4000/- was paid by defendant Kanhaiyalal to late Mulla Abdul Hussain and Kanhaiyalal was put in possession of the said land. The balance of the consideration was agreed to be paid within a month when a registered sale-deed had to be executed and registered in favour of the defendant. Thereafter a sum of Rs. 5000/- was also paid by Kanhaiyalal to Mulla Abdul Hussain towards the consideration. As the defendant Kanhaiyalal failed to obtain a registered sale-deed on payment of the balance of the consideration of Rs. 11,000/-, late Mulla Abdul Hussain instituted a suit on 26th Sept. 1960, against defendant Kanhaiyalal for specific performance of the contract. Plaintiff late Mulla Abdul Hussain besides claiming a decree for balance of consideration also claimed a relief of mesne profits as the defendant was in actual possession of land and enjoying usufruct thereof or in the alternative interest on the outstanding balance of consideration.

(3.) Defendant-appellant contested the said suit mainly by contending that plaintiff late Mulla Abdul Hussain himself did not take steps to obtain permission from the Collector for sale of the land in accordance with the provisions of Madhya Bharat Tenancy and Land Revenue Act and that the agreement could not be specifically performed on account of the said default made by late Mulla Abdul Hussain. The learned that Court, however, decreed the suit for specific performance on 24th Sept. 1961 by holding that the contract could not be carried through on account of the fault of defendant Kanhaiyalal as he had no funds to pay the balance of consideration of Rs. 11,000/-. The trial Court also held that the plaintiff was entitled to interest at the rate of 9 per cent per annum. Learned trial Court, therefore, passed a decree accordingly by directing that the defendant shall pay Rs. 11,000/- to the plaintiff or deposit the same in the Court and on such payment or deposit, the plaintiff shall execute a registered sale-deed in favour of defendant Kanhaiyalal at the expenses of the defendant. It also directed that the said amount of Rs. 11,000/- shall carry interest at the rate of 6 per cent per annum from the date of the suit till realisation.