A RAMA RAO Vs. RAGHUNATH PATNAIK

JUDGEMENT

(1.) This Letters Patent Appeal under Chapter-VII, Rule 2(a) of the Orissa High Court Rules is at the instance of the defendants challenging the judgment and decree dated 7/08/1995 passed by the Hon'ble single Judge of this Court in First Appeal No. 27 of 1988, confirming the judgment and decree dated 19/12/1987 passed by the then Sub-ordinate Judge, Chhatrapur in Title suit No. 25 of 1984.

(2.) The suit out of which this Letters Patent Appeal arises was one for Specific Performance of Contract, filed by the present respondent No. 1 as the sole plaintiff. Bereft of all the unnecessary details, the short facts of the case as would be apparent from the averments made in the plaint are as follows : On 7/11/1983, A. Gopal Rao (Defendant No.1) executed an un-registered plain paper agreement (Ext-1) in respect of the suit scheduled house site agreeing to alienate the same in favour of plaintiff for a consideration of Rs.25,000/-. Out of the said amount a sum of Rs.5,000/- was paid on the same day as token of part performance. Although it was stipulated in the said agreement that within six months of receipt of the balance consideration amount, defendant No.1 would execute a registered sale- deed in favour of the plaintiff, he, violating the terms of the agreement, entered into another registered agreement for the same site with Ranka Panda (Defendant No.2) and Padma Charan alias Padmanava Patra (Defendant No.3) on 14/03/1984 (Ext-A) fixing the consideration amount at Rs.38,000/- and received Rs.2005/-as advance. After coming to know about the said fact, the plaintiff issued notice to all the defendants on 29/03/1984 (Ext-7 to 9) intimating about the subsistence of earlier agreement between him and Defendant No.1 and forbidding them to enter into any sale transaction. It is alleged that the notices issued to Defendant No. 1 (Ext-7) returned unserved, whereas notice issued to Defendant No.2 (Ext-8) and notice issued to Defendant No.3 (Ext-9) returned unserved on their refusal. On 2/04/1984, the plaintiff having come to know that defendants were conspiring amongst themselves to execute the sale-deed in respect of the suit site, instituted as suit praying for specific performance of contract and for other ancillary reliefs in the Court of the then Sub-ordinate Judge, Chhatrapur which was registered as T.S. No. 25 of 1984.

(3.) After receiving notice of the suit, defendant No.1 appeared and filed a written statement. Defendants 2 and 3 also filed separate but joint written statement. In his written statement, defendant No.1 denied execution of agreement (Ext-1) as well as receipt of Rs.5,000/- thereunder towards part performance of the sale consideration. His specific case was that taking advantage of his absence from Chhatrapur two persons, namely, Bauria Behera and Purna Chandra Moharana trespassed and remained in illegal occupation of the suit house site. In order to initiate a proceeding to evict them, he had given two sheets of signed blank papers to his childhood friend and class-mate Ramanuja Das. It is asserted that the said papers were utilised subsequently for the purpose of scribing the agreement. It was further pleaded by defendant No. 1 that prior to the execution of the agreement (Ext-A), the trespassers were evicted by a compromised judgment passed in T.S. No. 66 of 1984, and thereafter he sold the property to defendants 2 and 3.