SITARAM MADANLAL SARAOGI Vs. HEMCHAND BHAGWANDAS JAIN

JUDGEMENT

(1.) PREGNABILITY of the judgment passed in First Appeal No. 120/86 by a learned Single Judge of this Court allowing the appeal preferred by the defendant in a suit for specific performance of contract is called in question by the plaintiff invoking the jurisdiction under Clause 10 of the Letters Patent.

(2.) THE appellant herein as plaintiff instituted Civil Suit No. 27-A/81 alleging that on 7-1-1981 the defendant negotiated for sale of suit land through Ramgopal Soni, PW-3. The negotiation was concretised and the terms and conditions were settled between the parties. It was agreed between them that the consideration for the suit land would be Rs. 40,000/- out of which Rs. 10,000/- would be paid as earnest money and the balance would be made good at the time of the registration of the Sale Deed; the cost of execution and registration would be borne by the plaintiff and it was orally agreed by the defendant that he would execute the sale deed after some time as desired by the plaintiff and deliver possession thereof. According to the plaintiff in pursuance of the said agreement he paid Rs. 10,000/- and the defendant acknowledged the same in the agreement (Ex. P.-1 ). After a fortnight the plaintiff asked the defendant through PW-3 to execute the Sale Deed. It was intimated by the defendant that he would execute the deed within a few days. As no positive steps were taken and the plaintiff heard a rumour that the defendant was reluctant for the execution of the Sale Deed and was wanting more money for the suit land, he sent the broker, PW-3 to pursuade the defendant to fix a date for execution and registration of the sale deed when the plaintiff would pay the balance of the price as agreed. It is stated in the plaint that the broker returned with the information that the defendant refused to sell the suit land at the agreed price and demanded one Lakh. On 2-3-1981 the plaintiff sent a notice (Ex. P-3) requiring the defendant to execute the Sale Deed within seven days of the receipt of the notice, failing which he would be constrained to file the suit for specific performance. It was also intimated to the defendant that the plaintiff would be waiting on 9-3-1981 at the Sub-Registrar's Office with the requisite stamp, the price and registration expenses. The notice was delivered to the defendant on 5-3-1991, as per acknowledgment (Ex. P-2) but the defendant failed to turn up on the date fixed. Having no other way the plaintiff was constrained to file the present suit on 5-12-1991 alleging that he had always been ready and willing to perform his part of the agreement and to pay the balance of Rs. 30,000/- and bear all expenses of execution and registration of the Sale Deed but there had been no response from the defendant and, therefore, he was entitled to a decree directing the defendant to execute the sale deed and get the same registered on payment of the balance amount through Court. He also prayed for compensation @ Rs. 4,000/- per month for withholding the transfer from the date of filing of the suit till delivery of the possession.

(3.) THE claim of the plaintiff was resisted by the defendant by filing a written statement wherein, he disputed to have entered into any agreement for sale of 3. 78 acres of land for consideration of Rs. 40,000/ -. According to him, out of 3. 78 acres he had agreed to sell 0. 78 acres only and as the parties could not decide which portion was to be sold, boundary was not specified in (Ex. P.-1 ). The further case of the defendant is that he had executed the agreement with the intention to sell 0. 78 acres of suit land on consideration of Rs. 40,000/- and accordingly had received Rs. 10,000/ -. The plaintiff had demanded No Objection Certificate from the 'nazul' and the location of the plot was to be determined after consulting the Patwari before the registration. Stating these circumstances, the defendant advanced a positive plea that the value of the total land measuring 3. 78 acres on the date of agreement, was Rs. 3,50,000/- and, therefore, it was inconceivable that the defendant had agreed to sell the entire land, hence the agreement was obtained by fraud. The defendant admitted the receipt of the notice but on inquiry with regard to the extent of land as mentioned in the notice, the plaintiff reaffirmed that the agreement pertained to purchase of 0. 78 acres only. All the averments in the plaint were traversed. He also denied the plaint-averment with regard to the plaintiff's going to the office of Sub-Registrar and asking him to execute the Sale Deed on acceptance of the balance price. He expressed his willingness to sell 0. 78 acres on payment of the balance amount of Rs. 30,000/ -.