CHAMRU LAL Vs. MAHADEV PRASAD

JUDGEMENT

(1.) FEELING aggrieved by the judgment and decree dated 15.11.1994 passed by 1st Additional District Judge, Seoni in Civil Suit No. 3-A of 1992, the plaintiff has preferred this appeal.

(2.) SANS unnecessary details, the facts lie in a narrow compass that defendant No. 1 Mahadev Prasad is the Bhumiswami of the agricultural land in question. He entered into an agreement with plaintiff on 10.9.1991 and agreed to sell the land in question to plaintiff for a consideration of Rs.45,390/- and received Rs.10,011/- as earnest money. It was agreed by the parties that after obtaining the balance sale price the sale-deed shall be executed and in case the defendant fails or avoid to execute the sale deed, the plaintiff would be free to file the appropriate suit to get the sale deed executed.

(3.) THE defendant did not remain present despite having served and, therefore, the Trial Court proceeded ex parte against him. The Trial Court recorded the evidence of plaintiff and his witness and came to hold that defendant did execute the document of agreement in favour of plaintiff arid plaintiff was ready and willing to perform his part of contract but as the land in question is less than 5 acres, therefore, in view of the section 165 (7) of the M.P. Land Revenue Code, 1959, no decree of specific performance can be passed and, therefore, the trial Court simply passed a money decree to return the earnest money along with interest by the impugned judgment. Hence, this appeal.