BHRAMARBAR SAHU AND ORS. Vs. BASUDEV DAS

JUDGEMENT

(1.) THIS is a second appeal by the Defendants who have lost in both the Courts below. It arises out a suit for specific performance of B contract and for setting aside the sale deed executed by Defendant 1 in favour of Kasinath Sahu who was originally Defendant -2, but having died during the pendency of the suit, has been substituted by his legal representatives who are Defendants 2 to 5. The Plaintiff also prays for confirmation of possession in respect of the suit land.

(2.) THE Plaintiff 's case, in short, is that he had taken the suit land, on mortgage, from Defendant on 27 -1 -1961 for a sum of Rs. 600/ -. The mortgage bond stipulated payment of interest at 12 1/2% per annum, and provided two years ' time for redemption. As Defendant -1 was not in a position to redeem on the expiry of the redemption period, he contracted with the Plaintiff to sell the property. The oral contract was completed and the consideration money was fixed at Rs. one thousand, part of which was to be adjusted against the outstanding dues under the mortgage -bond amounting to Rs. 775/ - and the balance of Rs. 225/ - to be paid in cash. Pursuant to the contract, the Plaintiff paid Rs. 225/ - in cash to the Defendant who delivered possession of the property on the following day. Four or five days thereafter the parties went to the Sub -Registrar 's Office for Execution and registration of the necessary sale deed. Defendant -1 purchased the stamp paper for the purpose on 4.6.1963. But while the stamp -paper was being written on, Defendant -1 left the place on a pretext and never returned to complete the sale deed. Thereafter, The Defendant -1 sold the suit property to the original Defendant -2 Kasinath Sahu for a sum of Rs. 1000/ - on 26.12.1963.Hence the suit.

(3.) BOTH the Courts have negatived the Defendant 2 's special plea and have also held that the alleged contract was true and have, therefore, decreed the suit for specific performance of the contract.