UPENDRA PRASAD DEBATA Vs. RANGADHAR DEBATA

JUDGEMENT

(1.) The appellant in this appeal under section 100 of the Code of Civil Procedure (for short, 'the Code') has assailed the judgment and decree dated 03.01.1998 and 09.01.1998 respectively passed by the learned District Judge, Keonjhar in Money Appeal No. 06 of 1992. The appellant as the plaintiff had filed the Money Suit No. 05 of 1991 in the court of Sub-Ordinate Judge, Keonjhar (as it was then) praying for a decree for recovery of sum of Rs.5,876/- with interest, pendentilite and future @ 12% per annum from the respondent, arraigned therein as defendant. The suit stood dismissed by judgment and decree dated 03.011.1992 and 18.11.1992. The appellant as the unsuccessful plaintiff had filed the above noted appeal under section 96 of the Code wherein the judgment and decree passed by the trial court have been confirmed.

(2.) For the sake of convenience, in order to avoid confusion and bring in clarity; the parties hereinafter have been referred to, as they have been arraigned in the trial court.

(3.) The defendant is none other than the brother of the plaintiff. They were residing separately under separate mess but without any division of the ancestral property. Sometime in the year 1986, the defendant approached the plaintiff with a proposal to purchase his self-acquired immovable property measuring Ac.0.66 decimals of land for consideration of Rs.6,000/- so as to enable him to pay the dues towards the loan incurred by him for his daughter's marriage. The proposal was accepted by the plaintiff with condition that he would pay the consideration money gradually in course of time. It is stated that after few days, the defendant having come to Keonjhar, took some amount towards the expenses for the sale deed. He had then requested the plaintiff to come to Anandapur on 20.10.1986 for execution of the sale-deed. Accordingly on 22.10.1986, the plaintiff went to Anandapur where the deed being scribed was executed by the defendant. It is stated to have been indicated in the said sale-deed that the defendant pursuant to the sale had delivered the possession of the land to the plaintiff. The defendant however, agreed to handover the deed to the plaintiff upon receiving the agreed consideration amount in full within six months. On 03.11.1986, the defendant coming to Keonjhar had received a sum of Rs.2,200/- from the plaintiff and then again on 19.11.1986, the plaintiff paid a sum of Rs.1000/- to the defendant towards the consideration amount. On both the occasion, the defendant in acknowledgement of receipt of the money had executed documents on revenue stamp. It is the further case of the plaintiff that after all the above developments; he came to know that the land sold to him under the sale-deed was a part of the undivided property of the family falling within the subject matter of the partition suit. It was also learnt that the defendant had mortgaged the said land on two occasion with the Land Mortgage Bank, Anandapur as security for some loans. It was futher ascertained that the plaintiff had that the defendant having taken some money had put one Sri Kunja Bihari Pahi in possession of the said land. When the matter stood thus, one day the defendant came to Keonjhar to take the rest consideration amount from the plaintiff. He was then requested by the plaintiff to repay the dues of the Bank and deliver the possession of the said land to him. The defendant however having refused to do so insisted for payment of rest consideration. So, the plaintiff expressed his desire not to proceed further to purchase the land and demanded refund of the part consideration already paid along with the amount given towards expenses for preparing the sale deed with interest from the defendant. It being an unexpected moment for the defendant, he left Keonjhar stating that he would pay back the amount with interest. However, on 14.03.1988, the defendant gave a notice through his Advocate to the plaintiff in demanding payment of rest consideration amount, further stating that in case of failure, he would sale the land to others. The plaintiff had replied to the same on 01.02.1991. In reply, the plaintiff again gave stress upon the fact that he did not want to purchase the land any more. Finally, the defendant having failed to pay the amount received from the plaintiff i.e., Rs.3200/- towards consideration and Rs.535.50 for expenses; the plaintiff filed the suit for recovery of Rs.5876/- which included interest @12% per annum.