MAKNIRAM Vs. FAKRUDDIN AND ANOTHER

JUDGEMENT

(1.) This is defendant's second appeal against the judgment and decree dated 9-12-77 passed by the 1st Additional District Judge, Ratlam, in civil appeal No. 9-A/76, affirming the judgment and decree passed by the Civil Judge Class 11, Jaora on 27-3-76 in Civil Suit No. 83-A/73.

(2.) The controversy is in a very limited compass. The plaintiff filed a suit for specific performance of the contract that is Ex.P.1 dated 2-4-69 under which he is said to have purchased survey no. 1429 area 1.28 acres of village Piploda. At the time of the execution of the agreement an amount of Rs. 100.00 was paid and rest of the amount that is Rs. 1525.00was adjusted on account of some previous transaction between the parties. The possession of the land was handed over to the plaintiff by the defendant and he continued to be in possession. The agreement contemplated that the defendant shall execute a sale deed within 15 months from the date of the agreement and alternatively if within the said period he pays off the whole amount of Rs. 1525.00, the agreement will become ineffective. The defendant did not do either as stated above. The plaintiff therefore filed a suit for specific performance of the contract in the court of Civil Judge who interpreting the agreement and the oral evidence passed a decree for specific performance, in favour of the plaintiff. Against the said decree an appeal was preferred before the 1st Additional District Judge, Ratlam.

(3.) The main contention of the appellant was that the agreement Ex. P.1 should be read as a loan transaction and on the basis of a averment made in the document itself, the transaction was not one of sale or one with a promise but to reconvey the land. But it was specifically an agreement based on previous transaction in relation to the loan given to the defendant by the plaintiff and those transactions were nothing but in the nature of debt. The defendant belonged to the caste of Balai, which is Anusuchit Jati and as such no suit could have been filed for recovery of the said debt as it should have been deemed to have been waived under the provisions of the M. P. Anusuchit Jati Tatha Jan Jati Rini Sahayata Adhiniyam, 1967, and also an argument was placed that under Sec. 165 (1) (c) of the M. P. Land Revenue Code the defendant was entitled to recover the possession of the land after the period of six months and admittedly the plaintiff being in possession of the land for more than 18 years, the Judge should have dismissed the suit on the said averment. However, the District Judge, found the suit being based on Ex. P. 1 which was an agreement for sale of the land not for recovery of the loan. The provisions of the M. P. Anusuchit Jati Tatha Jan Jati R. S. Adhiniyam 1967 did not apply nor was he entitled to get back the possession under the provisions of the M. P. Land Revenue Code.