SIMANCHAL MAHAPATRO Vs. BUDHIRAM PADHI

JUDGEMENT

(1.) This appeal, by defendants 2 and 3, arises out of a suit for specific performance of a contract of sale dated 16-2-1967 executed by defendant No. 1 Sobhabati Panigrahi in favour of the plaintiff (respondent No. 1) agreeing to sell the suit lands measuring 5.17 acres for a sum of Rs. 7,600/-.

(2.) The plaintiff's case was that the suit lands are situated at a distance of 120 miles from Parlakhemundi where defendant No. 1 ordinarily resides. She desired to dispose of the land and requested her cousin brother Gobinda Panigrahi (P. W. 5) to find out a suitable purchaser. On 16-2-1967 sine executed the deed of contract (Ex, 1-D) in favour of the plaintiff on re'ceipt of a sum of Rs. 1,000/- as earnest money and agreed to execute the sale deed by 31-3-1967; but instead of selling the lands to the plaintiff as agreed upon, she executed two sale deeds (Exhibits A-2 and B-2) in favour of defendants 2 and 3 on 17-3-1967. It was alleged that the defendants 2 and 3 are not bona fide purchasers for value and that the sale deeds in their favour were created in order to defeat the rights of the plaintiff. It was further alleged that the plaintiff was all along ready and willing to perform his part of the contract.

(3.) Defendant No. 1 filed written statement contending that the plaintiff got the deed of contract executed by her by fraud and misrepresentation and that she became aware of the fraud on receipt of a telegram from D. W. 5 Banamali Misra to the effect that he had offered Rs. 9,200/- for the suit lands to the said Gobinda Panigrahi. She issued a notice of cancellation of the suit contract calling upon the plaintiff to take refund of the sum of Rs. 1,000/- and then sold the lands to defendants 2 and 3 for valuable consideration.