M C CHOUBEY Vs. NARBADESHWAR PRASAD PANDEY

JUDGEMENT

(1.) THIS is defendant's second appeal Under Section 100 of the Code of Civil Procedure against the judgment of affirmance. Plaintiff filed suit for specific performance of contract. 9th Civil Judge, Class II, Jabalpur by his judgment and decree dated 19-1-1989 passed in C. S. No. 156-A/86 decreed the suit. Defendant aggrieved by the same preferred Civil Appeal No. 26-A/91 and the 6th Addl. District Judge, Jabalpur by judgment and decree dated 11-5-1991 dismissed the appeal. Aggrieved by the same defendant has preferred this appeal Under Section 100 of the Code of Civil Procedure.

(2.) ADMITTED facts of the case are that the defendant on 25-10-1997 executed an agreement to sale of 2400 sq. ft. of land of plot No. 30, village Laxmipur in the District of Jabalpur after receipt of the advance money. According to the agreement, the defendant after receipt of the full consideration money was to execute the sale deed in favour of the plaintiff. On failure of the defendant to execute the sale deed, plaintiff gave notice and in spite of the same, the defendant did not execute the sale deed and thereafter plaintiff filed the suit for specific performance of contract.

(3.) ACCORDING to the plaintiff on 25-10-1979 defendant executed the agreement to sale in presence of the witness R. N. Mishra and the consideration money agreed was Rs. 7,200/- and on the date of agreement a sum of Rs. 2,200/- was given in advance and the rest of the consideration money was agreed to be paid at the time of registration of the documents. According to the plaintiff, in order to save property and income tax plaintiff asked the defendant to indicate a sum of Rs. 500/- as advance in place of Rs. 2,200/- and Rs. 5,5oo/-as consideration money in place of Rs. 7,200/- in the agreement. The defendant did not object to the same and accordingly agreement to sale (Ex. P. 1) was executed, showing the consideration money to be Rs. 5,500/- and advance of Rs. 500/ -. According to the plaintiff, defendant agreed that after taking permission of the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976 (here in after referred to as the Act), he shall inform the plaintiff and within one month thereafter, defendant shall execute the sale deed. According to the plaintiff, he had consideration money right from the date when the agreement to sale was executed and he was ready and willing to perform his part of the contract but defendant never informed about the permission obtained from the authority under the Act and in spite of several reminders, no step was taken for execution of the sale deed. Plaintiff accordingly gave notice through lawyer for the execution of the sale deed and in answer thereto the defendant sent an incorrect reply that plot in question is the property of the joint Hindu Family and in view of the refusal of the co-parcenars to sale the property, the agreement to sale has become inoperative. However, according to the plaintiff, the defendant, in view of the fact that the price of the land has increased is declining to execute the sale deed. On the aforesaid premises, the plaintiff prayed for decree for specific performance of contract for sale of the suit land.