OM PRAKASH Vs. DHARMA BAI

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment dated 10-02- 2000 passed by the Court of First Additional District judge, Guna in Civil Appeal No. 28-A/1998.

(2.) FACTS relevant for the purpose of this appeal are that plaintiff/respondent No. 1 instituted a suit for specific performance and perpetual injunction, mainly with the allegations that defendant/appellant No. 1 was recorded Bhumiswami of the land comprised in survey No. 170/1/2 in area 0.490 hectare situated in village Dhanakhedi, Tahsil and District Guna. On mediation of Jalam Singh father of defendant/appellant No. 1, appellant No.2 entered into an agreement of sale in favour of plaintiff in respect of the suit land for a consideration of Rs.10,000/-. Initially, agreement was oral and possession was delivered to the plaintiff pursuant thereto. On 16-12-1994, an agreement was reduced into writing and entire consideration was received by the appellant No.2 in cash. Plaintiff was short of expenses of registered document, therefore, it was agreed that the plaintiff after harvesting of crops in the month of May 1995 would get the sale deed executed from appellant No.2. Negotiations in respect of agreement were made by Ratanlal Kirar-husband of plaintiff on her behalf and consideration was also paid by him on plaintiff's behalf to the appellant No.2. Similarly, possession of the suit land was also obtained by plaintiff's son on her behalf. On 23-07-1995, appellant No.2 asked the plaintiff's husband to remove his possession and threatened him of dispossession, in case possession is not removed. It is further stated in the plaint that mutation in favour of plaintiff was already made by Patwari on the basis of sale agreement which was well within the knowledge of appellant No. 2 before he purchased it from appellant No. 1. Thus, both the defendant/ appellants were and are bound by the sale against defendants/appellants for specific performance and perpetual injunction, restraining them from interfering into plaintiff's possession. In alternative plea, refund of consideration was sought.

(3.) IN additional plea, it was stated that appellant No.2 had already entered into an agreement of sale in favour of appellant No.1 on 16-08-1994 and pursuant thereto a registered sale deed was executed by him in favour of appellant No. 1 on 14-03-1995, therefore, the alleged subsequent agreement in favour of plaintiff is void and ineffective.