STATE OF M.P. Vs. SHARIF KHAN

JUDGEMENT

(1.) THIS second appeal arising out of recovery of Rs. 2,285/ - has been preferred by the defendant.

(2.) SHORTLY narrated the facts are that the plaintiff had taken land from Madhya Pradesh Government, Mining Department, mentioned in the plaint for the period 1.4.77 to 31.3.79 and agreed to pay a sum of Rs. 3,200/ - per year. An agreement in this regard was executed on 23.4.1977 and possession was delivered on 11.5.77. The facts were that one Sumerchand s/o Banslli Dhar Jain was in unlawful possession. Consequently the plaintiff could not utilise the land. He gave several letters and a notice u/s 80 C.P.C. to the defendant but to no effect. He had deposited a sum of Rs. 960/ - as earnest money and Rs. 225/ - towards stamps. Thus, he was entitled to recover Rs. 2285/ -. The defendant did not dispute that there was an agreement as claimed by the plaintiff but alleged that actual possession had been taken and the plaintiff had done the mining work. He moved an application before the defendant that he was ill and hence he did not want to carryon the mining work. He, therefore, violated the terms of the agreement and the Theka was cancelled. He was not entitled to recover any amount. The suit was decreed by the learned trial Court for a sum of Rs. 2060/ - on 14.7.1982. The defendant preferred an appeal which too was dismissed and the judgment and decree passed by the trial Court was confirmed. The defendant has now filed this second appeal.