SARDAR GURDEEP SINGH Vs. AMIYA KUMAR DATTA

JUDGEMENT

(1.) THIS is plaintiff's first appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 9-11-1987 passed by Shri K. K. Shrivastava, II Additional Judge to the Court of District Judge, Surguja at Ambikapur, in Civil Suit No. 2-A of 1987, dismissing the suit for specific performance of agreement dated 3-10-1974 (Ex. P-6 ).

(2.) THE property in dispute, in the appeal is 2. 27 acres of land forming part of Khasra No. 242/2 at village Namna-Kala, district Surguja, admittedly owned by respondent A. K. Dutta in his Bhumiswami right. Though plaint allegations originally did not contain any challenge to the respondent's title, it was amended and the challenge to the title made. In this Court, however, it has been conceded that the respondent is the Bhumiswami of the said land. According to the plaint, the parties entered into an agreement dt. 3-10-1974 (Ex. P-6), to sell the aforesaid land for valuable consideration of Rs. 25,000/ -. The appellant claimed to have paid Rs. 1,000/- as earnest money on the date of this agreement. According to this agreement, the sale-deed was to be executed within a period of six months on payment of balance of Rs. 24,000/ -. The agreement, however, further provided that in case, the appellant was not able to get the sale-deed executed within six months, be could do so within a further period of six months by paying the additional amount of interest at the rate of 10 per cent per annum on the balance of consideration. The agreement, however, records that the property was in possession of the father of the appellant, Late Hakim Singh who was using the same for running his saw-mill on the basis of lease deed dated 1 -9-1974. Neither party has filed this lease deed dated 1-9-1974. The case of the appellant plaintiff is that the suit land was taken on lease by late Hakim Singh in 1952 and saw-mill had been running thereupon since then. It was also alleged that originally it used to be an agricultural land and was got diverted by appellant's father by order dated 7-6-1966 (Ex. P-5 ). Case of the appellant is that he has always been ready and willing to pay the balance of consideration and obtain the sale-deed but the respondent has avoided doing so. That is how the appellant has claimed a decree for specific performance. The appellant had specifically alleged that he sent letter, Ex. P-1, on 18-12-1974 to the respondent at his Bhopal address, because the respondent had been transferred to Bhopal and was working there as Assistant Conservator of Forest. According to the appellant, the said letter could not be served on the respondent because the respondent was not available at the address given. The envelope has been filed as Ex. P-2. The case of the appellant-plaintiff also appears to be that the respondent came to Ambikapur in July, 1975 when he again met him and requested him to get the sale-deed executed. It is alleged that the respondent, at that time, only borrowed further amount of Rs. 600/-, on account of the sale and promised to execute the sale-deed later on. Instead of executing sale-deed the respondent filed the suit for eviction and hence the appellant felt it necessary to bring the present suit for specific performance and permanent injunction. The written statement on behalf of the respondent was filed by one R. Chaki claiming to be the power of attorney holder of the respondent. The respondent, by filing his written statement denied all adverse allegations made in the plaint. He specifically denied that Hakim Singh was in possession of the land since 1952 and was running the saw-mill thereupon. The respondent also denied that Hakim Singh got the land diverted in any revenue proceeding. He also denied that the notice was sent to his correct address. In spite of it, he admitted that he was at Bhopal in 1974 and serving the State Government as Assistant Conservator of Forest. According to respondent, his address was widely known to everybody. It was, therefore, submitted that the appellant-plaintiff did not send the letter dt. 18-12-1974, as alleged. The case of the respondent, as set out in the written statement was that the appellant committed breach of agreement by hot offering to pay balance of consideration and getting the sale-deed executed within one year. It was also alleged that Hakim Singh was given the lease of the land with effect from 1-9-1974. The respondent also denied having met the appellant in July, 1974 or borrowiwng Rs. 600/ -. It was therefore submitted that it was the appellant -plaintiff who has committed the breach of agreement and therefore, not entitled to any relief. The suit was also claimed to be barred by limitation. The learned trial Judge, on appreciation of evidence adduced by the parties, held that the agreement dt. 3-10-1974 was intentionally and knowingly signed by the parties and the time w as essence thereof. The learned Judge, however, held that the appellant was not ready and willing to perform his part of the agreement within the stipulated period. The learned Judge also held that the suit was barred by limitation. The further findings recorded by the learned Judge are that the respondent is lawful owner of the suit land and the appellant was not entitled to challenge his title. On these findings the suit was dismissed.

(3.) IT may be mentioned that the respondent had filed the suit for eviction of the appellant which was the subject matter of Civil Suit No. 9-A of 1980 renumbered as C. S. No. 42/1986 ). Because of the findings aforesaid, the said suit was allowed and a decree for eviction of the appellant from the suit 1 and passed on 31 -10-1988. The said judgment is also under challenge before this Court in First Appeal No. 16/1989. Since the consequences of this appeal ( F. A. 51 /1988) are going to affect the decision in First Appeal No. 16/1989, both these appeals have been heard together and are being decided today.