HARAMANI DEI Vs. KULAMANI MOHANTY

JUDGEMENT

(1.) The unsuccessful defendant as appellant has preferred this appeal challenging the judgment and decree passed by the learned Subordinate Judge, Bhubaneswar (as it was then) in O.S. No. 289 of 1981 decreeing the suit filed by the respondent as plaintiffs.

(2.) For the sake of convenience, clarity and to avoid confusion the parties hereinafter have been referred to as they have been arrayed in the Court below. It is pertinent to state at this juncture that the plaintiff having died during pendency of this appeal his legal representatives has been substituted and they are defending the sustainability of the judgment and decree of the suit in favour of their predecessor-in-interest.

(3.) Plaintiff's case is that the he is the lessee in respect of the suit land, granted by the State Government in the Department of P.&S. for a period of 99 years and necessary deed to that effect has been executed and registered on 6.2.1970. As the lessee, the plaintiff was delivered with the possession of the said land and thereafter he made some construction over there including digging of a well. The plaintiff being in need of money, entered into an agreement with the defendant on 18.2.1977 for sell of the same together with the existing construction for consideration of 8,500.00 in total on different dates towards advance. Pursuant to the said agreement, the possession of the suit land was also delivered to the defendant. The suit land being a lease hold one, the plaintiff was required to obtain permission from the lessor - State for said sale being stipulated as a condition precedent in the deed of lease. So, the parties agreed that the plaintiff would apply to the lessor for the said permission and after the permission is accorded would execute and register the sale-deed in the favour of the defendant on receipt of rest consideration. It is asserted that the plaintiff took required steps by making application before the lessee for according necessary permission to sell the suit land to the defendant. However vide letter dated 15.10.1979, the lessor refused to accord the permission as applied for. Therefore, the agreement remained unenforceable and the plaintiff remained in such a position that he could not complete his part of the contract being obstructed by the said refusal of permission by the lessor. It is the further case of the plaintiff that in view of such refusal by the lessor, he had requested the defendant to take back the advance consideration paid by her and to vacate the possession of the suit land. However, the defendant did not pay any heed to it. So, the plaintiff served a notice through his advocate, while simultaneously publishing in the Oriya daily, The Samaj on 12.5.1981. The defendant having not responded to the same in any manner, the suit came to be filed mainly for the reliefs as under:-