MAN SINGH Vs. KAMALA BAI ON 15 MARCH,

JUDGEMENT

(1.) The plaintiffs being aggrieved by the dismissal of CS No.42-A/1997 by the judgment dated 3/7/1998 passed by the II Additional District Judge, Shajapur has approached this Court by the present appeal under Section 96 of the CPC.

(2.) The appellants had filed the suit for specific performance of the contract with the prayer for mesne profit and alternate relief of refund of consideration amount with interest with the plea that the suit properties are registered in the name of the deceased defendant No.1 Kamlabai in which Kamlabai had half share and her daughters respondents no. 2 & 3 namely Manubai and Devbai had 1/4th - 1/4th share and that the partition between Kamlabai and respondents No.2 and 3 had taken place. It was further pleaded that Kamlabai had entered into the sale agreement with the appellants dated 7/1/1991 for sale of her half share for consideration of Rs.1,27,000/- and had a sum of Rs.10,500/- in advance and the registered sale deed was to be executed in March 1991 but the time was not essence of the contract. It was further pleaded that the appellants had agreed to accept possession of survey No.218 and 422 from Kamlabai but Kamlabai instead of executing the sale deed in favour of the appellants had executed the sale deed for Rs.80,000/- dated 8/5/1991 in favour of the respondent No.2 Manubai and Manubai during pendency of the suit on 25/7/1992 had sold a part of the suit land to the appellants but the sale of the remaining part as per the agreement to sale remained, but inspite of the knowledge of the agreement respondent No.2 had purchased the suit property from Kamlabai and the partition was done. Hence, it was pleaded that the sale deed of an area of 1.798 Are remains to be executed in favour of the appellants and the suit was filed.

(3.) Kamlabai had remained ex-parte in the suit.