NABA BEWA Vs. S.A. HASSAN

JUDGEMENT

(1.) This appeal at the instance of defendant nos.1 to 6 assails the affirming judgment of the learned Addl. District Judge, Bhubaneswar in RFA No.2/17 of 2003.

(2.) Brief facts leading to this appeal are as under : The Government of Orissa granted lease of the suit land in favour of Arakhita Jena, predecessor-in-interest of the appellants on 14.7.1969. Possession of the land was delivered to the lessee on 22.4.1970. To press the legal necessity, Arakhita Jena entered into an agreement for sale on 29.8.1970 with the plaintiff-respondent no.1. Under the terms of the agreement, he agreed to sell the property for a sum of Rs.2800/-. On the date of execution of the agreement, he received Rs.2300/- and delivered possession to the plaintiff. Agreement stipulated that permission of the State of Orissa- defendant no.7 would be necessary for alienation of the property. He took up the responsibility to obtain permission from defendant no.7 and thereafter execute the tripartite deed in favour of the plaintiff. It was agreed between the parties that the balance consideration amount of Rs.500/- shall be paid within a month of transfer. Arakhita Jena made an application to the Government on 27.12.1970 to accord permission to alienate the land. He died in the year 1974 leaving behind the appellants. Thereafter, his widow-Naba Bewa, defendant no.1, for herself and on behalf of minor son- defendant no.4 and defendants 2 and 3 made an application to the Government on 29.10.1980 to transfer the land. Permission was accorded on 26.12.1986. Thereafter, the plaintiff approached the defendants to receive the balance consideration amount and execute the tripartite lease deed. Plaintiff issued notice on 19.1.1987 to the defendants to receive balance amount and execute the sale deed. But there was no response. Plaintiff was/is ready and willing to perform part of the contract, but the defendants failed to perform the part of the contract. With this factual scenario, he instituted the suit for specific performance of contract.

(3.) Defendants 1 to 6 filed a written statement pleading, inter alia, that the alleged agreement to sell is a fake one. Arakhita Jena was the karta of the family. He acquired the suit property by means of lease. He had no right to execute the sale deed. He had no legal necessity to alienate the land. Plaintiff was a police officer. Arakhita Jena was an advocate clerk in the Criminal Court. They had very cordial relationship. Plaintiff had not taken any steps within the reasonable time. After death of Arakhita Jena, defendants succeeded to the property. They are in possession of the same. Defendant no.7- State of Orissa contested the suit without filing written statement.