JAGANNATH MALLIK Vs. SURENDRA GARTIA

JUDGEMENT

(1.) The defendants are the appellants against a reversing judgment in a suit for specific performance of contract.

(2.) The respondent as plaintiff instituted the suit pleading inter alia that defendant no.3 was the owner in possession of the suit land. Defendant nos.1 and 2 are the sons of defendant no.3. There was a family partition. The suit land fell to the share of defendant nos.1 and On 20.9.1980, defendant nos.1 and 2 entered into an agreement with him to sell the suit land for a consideration of Rs.6500.00. They received an amount of Rs.1400.00 towards part consideration and thereafter delivered possession. He requested defendant nos.1 and 2 to execute the sale deed after receiving the balance consideration amount. He is ready and willing to perform his part of contract. But then the defendant nos.1 and 2 in breach of contract executed a lease deed in favour of one Sadhu Meher. Thereafter defendant nos.1 and 2 sent a registered notice to the plaintiff to take back the money. Hence he filed the suit seeking the reliefs mentioned supra.

(3.) Pursuant to issuance of summons, defendant nos.1 and 2 entered appearance and filed their written statement denying the assertions made in the plaint. According to them, there was no partition between them and their father. Their father is the owner in possession of the suit land. They had not entered into contract with the plaintiff to sell the suit land for consideration of Rs.6500.00. The specific case of the defendants is that they need money for gambling for which they incurred a loan of R.1400.00 from the plaintiff. The plaintiff obtained an agreement. Defendant no.2 sent a registered letter requesting the plaintiff to receive the said amount. The plaintiff never requested the defendants to execute the sale deed. They are in possession of the suit land. Defendant no.3 had mortgaged the suit land in favour of defendant no.4 for legal necessity.