NIRUPAMA PRATIHARI Vs. NABARAM PRADHAN

JUDGEMENT

(1.) LEGALITY and propriety of judgment and decree dated 21.03.2001 and 01.09.2001 passed by the learned Civil Judge (Senior Division), Puri in T.S. No. 337 of 1997 is under challenge in these Appeals.

(2.) THE present appellant as plaintiff filed suit for a decree of specific performance of contract and in the alternative he prayed for receiving the advance consideration amount. The relevant pleadings for adjudication of this Appeal as revealed from the plaint is that the defendant was the owner in possession of the suit property; but the same stood recorded in the name of the Government. On the strength of a lease deed dated 01.10.1992 executed by the defendant the husband of the plaintiff was in possession over the suit property. In the month of December, 1993, the defendant being in need of money approached the plaintiff to purchase the case land for a consideration of Rs. 2,00,000/ -. In order to show his bona fide, the defendant gave photocopy of sale deed dated 11.04.1977 to the plaintiff to establish her title over the suit land. But he could not produce the ROR in respect of the same. The defendant gave impression that he would correct the erroneous entry in the ROR and execute the Registered Sale Deed in favour of the plaintiff within two years. On a bona fide belief that the defendant had title over the suit property, she agreed to the proposal and paid a sum of Rs. 1,00,000/ - in advance towards consideration amount for purchase of the suit land and executed an agreement to that effect and delivered vacant possession of the land to the plaintiff. In the said agreement, it was agreed between them that the defendant would execute the sale deed upon receipt of balance consideration of Rs. 1,00,000/ - within two years from the date of correction of the ROR. To show her readiness, the plaintiff on several occasions approached the defendant to execute the sale deed on payment of the balance consideration amount, but the defendant avoided the same on some plea or the other. Two years after execution of the agreement, the plaintiff and her husband in order to ascertain the correct position enquired the matter before the Settlement Authority and came to know that no such proceeding was initiated by the defendant for correction of ROR. The plaintiff was always ready and willing to perform her part of the contract to purchase the suit land on payment of balance consideration amount of Rs. 1,00,000/ - and the defendant defaulted to respond such request of the plaintiff. Thus, the suit was filed for the aforesaid relief.

(3.) THE plaintiff filed written statement to the counter -claim of the defendant stating that the counter claim was not maintainable. She specifically pleaded that her husband took the suit house on lease with effect from 01.10.1992 and was paying rent of Rs. 1,500/ - per month. During continuance of the tenancy, the defendant asked for a sum of Rs. 50,000/ - to meet his urgent need. In the month of June, 1993, plaintiff's husband gave Rs. 40,000/ - to him and to avoid rigors of the provisions of Orissa Money Launders Act an agreement for sale of the suit land was executed by the defendant on 05.06.1993 and it was mutually decided between them that the defendant would repay the money within one month, or else, it would be adjusted towards the rent. But in fact, the plaintiff's husband had no intention to purchase the land though he was continuing with possession as a monthly tenant. The plaintiff continued to stay with her husband over the suit land after her marriage. The marriage of the plaintiff was solemnized in the year 1993. After her marriage, when she was staying with her husband, the defendant wanted to sell away the property to the plaintiff and executed the agreement dated 31.12.1993 as aforesaid. The plaintiff further contended that the defendant had to repay loan of Rs. 40,000/ - within the stipulated period, but he failed to keep his promise. Thus, her husband was constrained to send a pleader's notice to the defendant which was returned back unserved. However, after repeated demands, the defendant repaid the loan and her husband returned the agreement back as well as the pleader's notice to the defendant. It was the specific plea of the plaintiff that her husband was in possession over the suit land and was carrying on his business thereon. Thus she prayed for dismissal of the counter claim.