RAJKUNWAR BAI Vs. MURLIDHAR

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 08/08/1995, passed by 1st Additional District Judge, Ratlam in Civil Suit No.2-A/1990, whereby the suit filed by respondent No. 1 for specific performance was decreed, the present appeal has been filed.

(2.) Short facts of the case are that respondent No.1 filed a suit for specific performance on 08/01/1990 against Bapusingh & Rajkunwar Bai, alleging that Bapusingh and Rajkunwarbai were mother and son and were owner of a land bearing No.356, bearing two survey numbers measuring 4.070 hectares situated at village sejafta Tehsil & District Ratlam. It was alleged that deceased Bapusingh entered into an agreement to sale the land of survey No. 166/509 measuring 4.050 hectares on 06/01/1987 for a consideration of Rs.27,500/- and towards earnest money respondent No. 1 deposited a sum of Rs. 14,900/- with Land Development Bank in the account of Bapusingh. It was further alleged that on 09/01/1987 deceased Bapusingh along with respondent No.1 went to Ratlam for executing the agreement to sale wherein it was acknowledged by Bapusingh that he has received Rs.20,000/-, which also includes Rs. 14,900/-, which was deposited in his loan account. It was alleged that as per agreement the sale was to be executed within a period of 15 days. Further case of respondent No.1 was that the period of execution of sale deed was extended on 17/01/1987 and a sum of Rs.4,200/- was further paid for depositing in the loan account of Bapusingh in Primary Agricultural Co-operative Credit Committee, Amleta. Further case of respondent No.1 was that on 20/01/19874 respondent No.1 along with Bapusingh and also along with one witness Bhanwarsingh went to one Kailsh Narayan Thakkar, document writer for getting the draft of the sale deed prepared, at that time it was pointed out by Kailash Narayan Thakkar that the sale deed cannot be executed unless and until the 'Rin Pustika' is brought. It was alleged that since Bapusingh was not possessing the 'Rin Pustika', therefore, the period of the agreement was further extended for a period of one month. It was alleged that on 21/01/1987 further loan of Rs. 1400/- was given to Bapusingh by respondent No. 1 for getting the documents prepared relating to 'Rin Pustika'. Further case of respondent No. 1 was that thereafter repeatedly respondent No. 1 asked Bapusingh to execute the sale deed but the sale deed was not executed by Bapusingh by one reason or another. It was further alleged that registered notice was given on 29/06/1987, wherein it was made clear that respondent No. 1 is ready and willing to get the sale deed executed after payment of Rs. 1,900/-, which is balance amount payable to Bapusingh. It was alleged that sale deed was not executed. On the contrary Bapusingh filed a suit bearing No. 162-A/1981, for permanent injunction, wherein a temporary injunction was obtained on 28/09/1987, against which an appeal was filed by the respondent No.1, which was allowed and the temporary injunction granted in favour of Rajkunwarbai was vacated. It was further alleged that since the respondent No. 1 has paid the substantial amount and was also ready and willing to pay the balance amount, therefore, a decree of specific performance be passed in favour of respondent No. 1 and against Bapusingh and Rajkunwarbai to the effect to execute the sale deed in favour of respondent No.1 on payment of Rs. 1,900/-.

(3.) The'suit was contested by the Bapusingh and Rajkunwarbai. After service of summons Bapusingh died and legal representatives were taken on record, who are appellants herein. Rajkunwarbai, who was the mother of Bapusingh and other legal representatives of Bapusingh, who are appellants No.2 to 6 filed the written statement wherein the transaction was denied and it was prayed that the suit be dismissed. After framing of issues and recording of evidence learned Trial Court found that Bapusingh entered into an agreement to sale the suit property and received the consideration hence the suit filed by respondent No. 1 was decreed against which the present appeal has been filed.