VIMAL KUMAR TARACHAND JAIN Vs. GYANCHAND KUNJILAL JAIN

JUDGEMENT

(1.) This is second appeal by defendant No. 2 against the judgment of affirmance. Plaintiff-respondent No. 1 filed the suit for specific performance of contract, perpetual injunction and in .the alternative, for recovery of possession. Civil Judge, .Class II, Waraseoni, by judgment and decree dated 9.3.1984 passed in Civil Suit No. 119-A of 1983, decreed the suit. Defendant No. 2, aggrieved by the same preferred appeal and the Second Additional district Judge, Balaghat, by his judgment and decree dated 13.4.1998, passed in Civil Appeal No. 44-A of 1987, dismissed the appeal. Defendant No. 2 being aggrieved by the same has preferred this appeal and by order dated 29.10.1988, appeal has been admitted on the following substantial question of law -

(2.) It is an admitted position that the suit land of Khata No. 330, having an area of 1.865 hectares, situated in village Bodhkasa, belonged to defendant No. 1 Dayaram, who on 3.6.1981 executed a sale-deed in favour of defendant No. 2 Vimal Kumar. According to the plaintiff, defendant No. 1 entered into an agreement to sell 0.28 acres of land in his favour for a consideration of Rs. 1,600/- on 25.11.1975 and he paid the entire consideration money. It is the stand of the plaintiff that as the property was encumbered by the Goverment/Co-operative loan registration of the document was not permissible but defendant No. 1 had given possession of land to the plaintiff. It is the assertion of the plaintiff that defendants went dishonest and defendant No. 1 executed a sale-deed in favour of defendant No. 2on 3.6.1981, but over the disputed land, plaintiff remained in possession. According to the plaintiff, on 25.4.1981 Panchayat took place at the residence of Dhan Singh, but the dispute could not be resolved. It is the stand of the plaintiff that defendant No. 2 knew that plaintiff is in possession over 0.80 acres of land as also he is owner thereof, in spite of that defendant No. 2 got the sale-deed executed by defendant No. 1. In the aforesaid premises, plaintiff filed the suit for specific performance of contract as also for perpetual injunction, restraining the defendants from interfering with his possession, in the alternative, for recovery of possession.

(3.) A joint written statement was filed on behalf of the defendants and it is their stand that no agreement was entered into between the plaintiff and defendant No. 1 nor defendant No. 1 ever recieved a sum of Rs. 1,600/- from the plaintiff or had handed over possession to him. According to the defendants, defendant No. 2 never knew that there was an agreement to sell entered between the plaintiff and defendant No. 2 and defendant No. 1 had legally and validly sold and handed over possession of land to the defendant No. 2.