SACHIDANANDA PATNAIK Vs. G P AND CO

JUDGEMENT

(1.) DEFENDANTS are the appellants. Defendant 2 is the brother and authorised agent of defendant 1 Plaintiff's case is that the disputed land belongs to defendant 1. She entered into an agreement Ex. 1 with the plaintiff on 7th October 1956 to sell the disputed land for Rs. 10,000/ -. Rs. 1000/-was paid as earnest money on the date of the execution of Ex. 1. There was a stipulation that the balance consideration would be paid by 30th October 1956 at the office of the Sub- Registrar, Balasore when the sale would be completed and that the vendor shall, on completion of the sale, deliver to the purchaser an abstract of her title to the property. Possession was also to be delivered on that day. Further terms of agreement are not relevant and need not be mentioned. On the 24th October 1956 the plaintiff was served with a notice (Ex. 2) from the Collector of Balasore prohibiting it from enclosing or possessing the disputed land as it was the subject-matter of a proceeding under Section 5 (1) of the Orissa Estates Abolition Act. The number and year of the proceeding was mentioned in the notice itself. The plaintiff was not aware prior to Ex. 1 that the disputed land was the subject-matter of such an enquiry. Plaintiff therefore came to Know that defendant 1 had not been recognised as a raiyat of the disputed land by the Anchal and her title was not free from doubt. After the service of the prohibitory notice defendant 1 could not execute a valid sale deed by 30th October 1956, as stipulated, and requested the plaintiff for extension of time. By a further agreement (Ext. 1/a)dated 1-11-1956, Incorporated in the body of Ex. 1, time was extended till the end of second week of January 1957. The contents of Ext. 1/a were to the following effect:

(2.) DEFENDANT 1 filed written statement without challenging most of the facts. She, however, pleaded that the plaintiff examined all her title-deeds and saw the rent receipts granted by the Anchal prior to the execution of Ex. 1. She was always ready to execute and sell the land, but due to the neglect and laches of the plaintiff, she could not do it. She could not give a reply to Ex. 4 as she was at calcutta attending upon her ailing husband. The plaintiff is not entitled to the claims as laid.

(3.) THE learned trial Court decreed the plaintiff's suit for Rs. 1000/- with interest at 12 per cent per annum from 7-10-56 to 25-11-1957 and rejected the claim for refund of Rs. 340/ -. The plaintiff filed no appeal against the decree dismissing the claim for refund of Rs. 340/-The finding of the learned trial court on that matter became conclusive. The defendants filed an appeal against the decree for refund of rs. 1000/ -. The learned lower appellate Court dismissed the appeal. Against the appellate decree the second appeal has been filed.