GIRJASHANKAR Vs. TARADEVI

JUDGEMENT

(1.) THIS appeal is preferred by the defendants being aggrieved by the judgment dated 17.7.1998 passed by First Additional District Judge, Gwalior in Civil Appeal No. 31 A/98 and 69A/98 whereby the first appellate Court has modified the judgment and decree dated 20.3.1996 passed by 8th Civil Judge Class II in Civil No. 139/96.

(2.) THE brief facts of the case are that the appellant plaintiff filed the present suit for specific performance against the respondents alleging that the two portion of the house in question was purchased by plaintiff and defendant jointly from the same owner for equal consideration and registered sale deed dated 27.2.1986 was executed in favour of the defendant while sale deed dated 28.2.1986 was executed by him in favour of the plaintiff. According to the plaintiff the portion falling in the share of defendant is 73.68 sq. meter while plaintiff got portion of the propeorty measured 68.84 sq. meter. Thus, the plaintiff has got 4.84 sq. meter less then the defendant. According to the plaintiff on 15.8.1987 there was an oral agreement between the parties before the husband of plaintiff and the father of defendant whereby it was agreed that the 4.84 sq. meter of land will be sold by the defendant in favour of the plaintiff on payment of consideration of Rs. 2,000/ - and accordingly plaintiff was put in possession of the said portion and he has constructed wall for him. The said line in the portion as map Ex. P -1.

(3.) THIS judgment and decree was challenged by both appellant and defendant by filing two separate appeals. The appellate Court affirmed the decree for specific performance, but set aside the condition of payment of compensation Rs. 4,000/ -. Thus, plaintiff suit was decreed in toto, hence this second appeal. This second appeal was admitted on 30.11.2005 by this Court on the following substantial question of law :