PURUSOTTAM PADHAN Vs. RADHESHYAM DASH

JUDGEMENT

(1.) This is a Second Appeal filed under Section 100 of Civil Procedure Code involving a challenge to the judgment and decree dated 28.1.2010 & 15.2.2010 respectively involving R.F.A. No.36/2008 on the file of Additional District Judge, Bargarh thereby confirming the judgment and decree dated 3.10.2008 and 17.10.2008 respectively involving C.S. No.109/2003 on the file of Civil Judge (Sr.Divn.), Bargarh.

(2.) Short background involving the case is that the respondent as plaintiff filed C.S. No.109/2003 praying for a decree directing the defendant to execute the sale deed for transfer of the "A" Schedule land in favour of the plaintiff after receiving the balance amount of Rs.7000/- or in the alternate to refund the advance sum of Rs.25,000/- with pendente lite interest by the defendant to the plaintiff as well as litigation cost. The plaint averment is that the defendant remaining as exclusive owner and in possession of the 'A' Schedule land on the strength of a registered sale deed dated 11.1.1991. On expressing his desire to sell the disputed land, the defendant, the present appellant, approached the plaintiff to purchase the 'A' Schedule land. Plaintiff agreeing to purchase entered into a contract for sale for a consideration of Rs.32,000/-. In the process, the defendant received a sum of Rs.25,000/- from the plaintiff as advance on 13.1.2003 executing a registered agreement for sale in favour of the plaintiff bearing no.73 dated 13.1.2003 with promise by the defendant to execute the registered sale deed facilitating transfer of the 'A' Schedule land within one month after obtaining necessary permission from the Consolidation Authority. It is further averred that the plaintiff on subsequent occasions requested the defendant to obtain necessary permission and further to execute the registered sale deed upon receiving the balance consideration of Rs.7000/-. The plaintiff alleged that the defendant not only failed to obtain permission within reasonable time but forced the plaintiff to issue a registered Pleader Notice on 1.8.2003 for specific performance of contract by the defendant. It is further alleged that in spite of receipt of the registered Pleader Notice, the defendant failed to obtain necessary permission and also to execute the sale deed within one month and remained silent on the issue. The plaintiff on the premises of being ready and willing to pay the balance consideration money and his attempt to the noticee being failed constrained to file the suit for relief as indicated herein above. The suit was registered as C.S. No.109/2003 on the file of Civil Judge (Sr.Divn.), Bargarh.

(3.) On his appearance the defendant-appellant filed written statement. While denying the claim of the plaintiff, the defendant took a plea that while he was the exclusive owner and in possession of the suit land, the plaintiff since had business transaction with the defendant, the defendant used to execute different documents in favour of the plaintiff on 17.1.1996, 24.7.1998 and 22.2.2000. The defendant also denied execution of any deed between the parties consenting of sale of land of the defendant particularly 'A' Schedule land. The defendant, as such, flatly denied the claim of the plaintiff that he had never received any amount from the plaintiff, further in response to the Pleader Notice contended that as he was ill, he was not in a position to respond the Pleader Notice at the instance of the plaintiff. The defendant filed an amended written statement taking a new plea that the plaintiff being a regular Money Lender since 1996 without licence was managing to make forged deeds involving the suit. The defendant further pleaded that it is on the other hand, the defendant mortgaged the deed dated 17.1.1996 and delivered possession of the same, as such the plaintiff came into possession of the disputed land. Defendant further pleaded that as per the condition in the mortgage deed, the plaintiff was to possess the suit land in lieu of interest and the defendant was to get back the land after the principal is paid. Defendant also alleged that the plaintiff anticipating problem for his money lending business, to get rid of the provision of the O.M.L. Act, forced the defendant to execute the document, i.e., registered deed of agreement dated 13.1.2003 and thus registered the document accordingly. On the plea of creation of a forged registered document, the defendant claimed that the plaintiff is not entitled to any relief involving the suit.