NILAMANI BEHERA Vs. PYARILAL SAHA

JUDGEMENT

(1.) Legal heirs of the plaintiff are the appellants. The plaintiff filed Title Suit No. 16 of 1972 in the Court of Subordinate Judge, Baripada fof declaration of her title over the plaint schedule property and recovery of possession on rescission of a contract for sale entered into by her in favour of defendant. The suit was resisted by defendant. He inter alia pleaded that he was entitled to the protection of Section 53-A of the Transfer of Property Act. The trial Court dismissed the suit on the ground that the plaintiff had not established that the defendant committed the breach of contract and that the suit was not maintainable. On appeal by the plaintiff, the learned Single Judge dismissed the appeal taking the view that time was not of the essence of the contract, and that the plaintiff had not established that the defendant was not ready and willing to perform his part of the contract. It is thus being aggrieved by the dismissal of the suit that the legal representatives of the plaintiff have filed this appeal under Clause 10 of the Letters Patent, as they had got themselves impleaded in the First Appeal on the death of the plaintiff.

(2.) The plaint schedule property including a partially constructed building, belonged to the plaintiff. There was pressure on the property since it was proceeded against for recovery of a debt and sold in auction. The plaintiff had sought the setting aside of the sale. On 13.9.1965, the plaintiff and the defendant entered into an agreement for sale of that property for a consideration of Rs. 13,500/-. On 15.9.1965. according to the defendant, he purchased the requisite stamp paper for execution of the sale deed. On 13.9.1965. a sum of Rs.8,000/- was paid as advance by the defendant to the plaintiff. The defendant, was put in possession on the basis of agreement for sale. The sale held in enforcement of the liability on the property was set-aside on 8.11 1.1965 by the Certificate Court. The plaintiff called upon the defendant to pay the balance and perform the contract. The defendant pointed out that the setting aside of the sale had not become final and the matter was pending in appeal. The appeal filed by the purchaser in the auction was allowed and the original authority's order setting aside the sale was reversed and the sale was confirmed by the appellate authority. The plaintiff filed a revision before the Board of Revenue challenging the decision of the appellate authority. On 12. 10,1966, the revision filed by the plaintiff was allowed by the Board of Revenue, which set aside the sale. Thus, on the terms of the agreement for sale, the plaintiff became liable to execute the sale deed and the defendant became entitled to have the sale deed executed immediately.

(3.) According to the plaintiff, though she made various demands of the defendant to tender the balance purchase price and to take the sale deed, the defendant did not fulfil his part of the contract. The plaintiff ultimately issued a notice dated 30.8.1971. The defendant sent reply contending that in addition to the sum of Rs. 8,000/- paid by him as advance on 13.9.1965, he had paid a further sum of Rs.500/- to the plaintiff and he a was ready and willing to take the sale deed on tendering the sum of Rs.5,000/- which remained to be paid towards the purchase price. In this situation, the plaintiff came forward with the present suit for the reliefs referred to above.