AMIYA KUMAR SAHU Vs. AJIT KUMAR SAHU

JUDGEMENT

(1.) This appeal has been filed against the judgment dated 17.5.2003 passed by the learned Civil Judge (Senior Division), Jeypore in Civil Suit No. 8 of 2002 decreeing the suit for specific performance of contract and directing the appellant-defendant to execute the sale deed in favour of the respondent-plaintiff pursuant to the alleged suit contract for sale. The appellant was the defendant and the respondent was the plaintiff in the Court below. Facts reveal that the appellant-defendant and respondent-plaintiff are two brothers, being the sons of Nilakantha Sahu. The suit is their ancestral property. After death of their father, the properties were partitioned between them amicably by virtue of a Family Partition Deed No. 34/88 in which the suit property fell to the share of the defendant. After partition, each of them enjoyed their respective shares without any hindrance and reference to each other. Thereafter, the defendant carried on business at Mumbai and settled there with his family members. The plaintiff alleged in the plaint that the defendant having no chance of returning to Jeypore to look after the suit property decided to sell the same to which plaintiff agreed to purchase the suit property for a consideration of Rs. 8,00,000/- and a written agreement for sale of the said suit land was executed on 11.11.2001 on payment of an advance amount of Rs. 6,70,000/- by the plaintiff to the defendant. The balance amount was agreed to be paid at the time of execution and registration of the sale deed. It is alleged that in spite of several requests of the plaintiff, the defendant did not come forward to execute the sale deed. Thereafter, the plaintiff issued a lawyer's notice to the defendant to which the defendant replied that he was unable to execute and register the sale deed as the other brothers did not agree for sale of the suit land in favour of the plaintiff. The suit was filed by the plaintiff before the learned Civil Judge (Senior Division), Jeypore for Specific Performance of Contract, being C.S. No. 8 of 2002, along with an application for permanent injunction against the defendant from executing any sale deed, mortgage, lease or any kind of deed in favour of any other person. In the said suit, the defendant appeared and filed his written statement denying the claim of the plaintiff, but admitted that he received a sum of Rs. 6,70,000/- on different occasions by different demand drafts from the plaintiff, though he was not aware of any proposal for sale of the suit land. When the defendant came to know about the agreement for sale in respect of the suit land and certain money receipts have been manufactured by utilizing some blank stamp papers with his signature, he immediately returned Rs. 6,70,000/- to the plaintiff, but the plaintiff refused to accept the same. The defendant further stated in his written statement that the alleged agreement for sale had no consent of his son and daughter as they have their legitimate share in the suit land, the same being ancestral property. Denying the allegations made in the plaint, the defendant further stated that the market price of the suit land would be not less than Rs. 1.00 crore and the alleged contract is a created one.

(2.) The Trial Court on analyzing the statements of the witnesses and the evidence adduced came to the finding that the plaintiff is entitled to get a decree for Specific Performance of Contract by the defendant and the defendant is injuncted permanently from executing any sale deed, mortgage, lease deed or making any kind of alienation in favour of any other person in respect of the suit property and accordingly, decreed the suit for Specific Performance of Contract filed by the plaintiff subject to the plaintiff depositing a sum of Rs. 1,30,000/- before the Court below along with stamp duty and registration charges for execution of the sale deed within a period of three months from the date of the judgment and the defendant was directed to execute the sale deed within a period of three months from the date of the judgment failing which the plaintiff would be at liberty to retain his possession over the suit land till execution of the sale deed.

(3.) On the above pleadings, the learned Trial Court framed as many as six issues, out of which issue Nos. 3 and 4 are the vital issues, which are quoted hereunder: