PRAKASH NARAYAN MISHRA Vs. SOBHANA KADAM & ORS

JUDGEMENT

(1.) This first appeal has been filed by the plaintiff being aggrieved by the judgment and decree dated 19.7.2000 passed by the Court of 9th Additional District Judge, Gwalior, in Civil Suit No.19-A/1996.

(2.) It is the case of the appellant/plaintiff that he had filed a suit for specific performance of the contract mentioning that the house situated at Chitnis Ki Goth, Lashkar, Gwalior, is in his possession and he alleged that he and the owner of the property Late Harishchandra Kadam had entered into an agreement to sell on 31.7.1986 to sell out that house in favour of the appellant for sale consideration of Rs.50,000/- and an agreement to sell was executed duly attested by notary public. It was alleged that in fact plaintiff had paid a sum of Rs.5,000/- on 11.5.1985 as advance and remaining amount of Rs.45,000/- on 30.7.1986 inasmuch as Harishchandra Kadam required some amounts for construction and had agreed to sell the property.

(3.) It is an admitted fact that father of the plaintiff namely Awdhesh Narayan was residing in the capacity of a tenant. It is plaintiff's allegation that possession of the first floor was handed over on 31.7.1986 and it was settled that since Harishchandra Kadam was constructing his own house, therefore, he was given three months' time to vacate the ground floor and hand over possession of the ground floor. It was also agreed that during this intervening period of enjoyment of possession of the ground floor plaintiff and Shri Harishchandra Kadam had agreed to execute a rent agreement in terms of which Shri Harishchandra Kadam was required to pay rent of Rs.300/- per month. It is submitted that Shri Harishchandra Kadam completed his construction and shifted to his newly constructed house at Saraswati Nagar, Lashkar, Gwalior, withholding possession of one room on ground floor by keeping small house hold items and that too was vacated on 2.1.1990 and possession was handed over to brother of the appellant namely Vijay Narayan and thereafter Shri Harishchandra Kadam wrote a letter on 5.1.1990 in favour of the appellant intimating that he is going to execute the sale-deed on 22.2.1990, but because of illness and resultant weak physical status, sale-deed could not be executed and ultimately he died on 11.4.1990. On the basis of such submissions, trial Court had framed following issues and directed the respective parties to lead evidence:-