KISHAN DEVI Vs. GAYAPRASAD

JUDGEMENT

(1.) This appeal has come on the list as 'to be mentioned'. Heard further argument from both the parties and the judgment is as follows.

(2.) Sole plaintiff in Title Suit No. 14 of 1974 of the Court of Subordinate Judge, Rourkela filed this appeal. Defendant No. 2 that suit claiming to be the purchaser of the suit land, has filed Cross-Objection challenging to the finding recorded by learned Subordinate Judge on issue No. 4. Both appeal and the cross-objection are heard and disposed of by this common judgment.

(3.) Admittedly, late Kanaihalal Nau was the owner of the suit land measuring an area of one and half decimals. In fact, he was owner of three decimals of land of plot No. 266, i.e., the suit plot. Admittedly he alienated one and half decimals of land to the sole plaintiff Muralilal Agrawal. According to the case of the plaintiff, one thatched house was there on each of the said Ac.0.01 and decimals of land possessed by the plaintiff and his vender. Plaintiff and his vender simultaneously removed the said thatched houses and undertook construction of 'pucca' houses. When the construction had gone up to plinth level, Kanaihalal fell ill, incurred expenses for treatment and could not undertake further construction of the house. At that stage he sought for the financial and supervisory assistance of the plaintiff to complete the construction with the assurance to let out a portion out of that to the plaintiff on a concession rate of monthly rent. Accordingly, plaintiff undertook construction of both the houses and completed the same together with a temple of Lord Shiva, which is in his possession. He also possession one room from the house of Kanaihalal on a monthly rent of Rs. 60/- (rupees sixty). After death of Kanaihalal, his widow Bhukani Thakurian succeeded to the property and sometimes after the death of her husband, she expressed her desire to alienate the property in favour of the plaintiff. On 4-4-1974 she executed Ext. 5, a plain paper agreement for sale contracting therein that the land and the house standing on the suit plot would be sold for Rs. 12,000/- (twelve thousand) and she received an advanced consideration of Rs. 2,000/- (two thousand) from the plaintiff. On 1-6-1974 late Bhukani executed and registered sale deed Ext. C/1 in favour of defendant No. 2 for a consideration of Rs. 6,000/- (six thousand) and thereunder transferred the suit land and the house standing thereon. Plaintiff challenged that transaction, inter alia, on the ground that the owner of the property was bound by the agreement for sale - Ext. 5 and the sale transaction was a sham and nominal one and by virtue of that sale deed neither there was passing of consideration nor transfer of ownership. Plaintiff also stated that he was making payment of rent to late Bhukani till the date of agreement - Ext. 5 and thereafter he stopped making payment being the proposed owner in possession. Accordingly he filed the suit for specific performance of contract and inter alia claimed to declare the sale deed Ext. C/1 invalid and not binding on him. During pendency of the suit, Bhukani, who was appearing as defendant No. 1 died and in her place one Gayaprasad has been substituted as the legal heir on the ground that he is the son's son of late Kanaihalal and late Bhukani. Defendant No. 2 filed a written statement denying about the agreement for sale and alternatively about his ignorance of such transaction and asserting his right as a bona fide purchaser for consideration. The substituted defendant No. 1 filed a written statement conceding to most of the claims of the plaintiff except the claim relating to relaxation in rent and justification for non-payment of rent after execution of Ext. 5. Because of the aforesaid conflicting pleas, learned subordinate Judge, Rourkela framed the following five issues :