KANAKLATABAI PURUSHOTTAM Vs. PARVATIBAI RAMCHANDRA BRAHMIN

JUDGEMENT

(1.) THIS is defendant's second appeal against the concurrent judgment and decree passed by the II Additional Judge to the Court of District Judge shajapur in Regular Civil Appeal No. 16-A/96 whereby the appeal preferred by the appellant against the judgment and decree passed by the Trial Court was dismissed and the findings recorded by the Trial Court were affirmed.

(2.) THE appeal was admitted for final hearing and the following substantial questions of law were formulated:- (1) Whether in the facts and circumstances of the case it it permissible in law to hold the sale-deed (Exh. D-3) as void merely on the ground that part of the agreed consideration had remained unpaid ? (2) Whether in the facts and circumstances of the case it is permissible in law to grant decree for declaration and perpetual injunction in the face of the sale-deed (Exh. D-3)? (3) Whether the conclusion about non-delivery of possession is vitiated on account of conflict with direct evidence and on misreading of the evidence on record ?

(3.) THE relevant facts necessary for the disposal of the appeal are as under. Respondent No. 1 Parvatibai is the Bhumiswami of agricultural holding bearing survey Nos. 1898/2 and 1898/3 situated in Village Susner which is in dispute. Respondent No. 1 filed a suit for declaration of title and permanent injunction on the allegation that she had entered into an agreement of sale on 29-7-1985 in favour of the appellant for a sum of Rs. 9,000/ -. She had received sum of Rs. 1,000/- on the date of execution of the agreement and the balance amount was to be paid on or before 6-11-1985. The further case of the plaintiff was that despite the demand notice, the balance amount of Rs. 8,000/- was nor paid by the appellant, therefore, the contract of the sale was fallen through and the respondent No. 1 continued to remain Bhumiswami of the suit land, therefore, she prayed for the relief of declaration and permanent injunction not to interfere with her possession over the land in dispute.