SABIRA KHATUN Vs. SYEDA FATEMA KHATUN

JUDGEMENT

(1.) This is an appeal under section 100 read with O 42, r 1 of the Civil Procedure Code, 1908, by the appellant-defendant against the judgment dated 10.6.85 of the learned District Judge, Nagaon, in TA No 4/84.

(2.) The brief facts of the case are that the respondent-plaintiff filed TS No. 14/80 in the Court of the learned Assistant District Judge No. 1, Nagaon, for specific enforcement of contract for sale of land in respect of an area measuring 1K 4L covered by Dag No. 1843 in PP No. 1134 of Nagaon Town. The Plaintiffs case in the said suit was that on 16.6.79, the defendant executed a ""Baina-nama" agreeing ten sell the aforesaid land within 9 months for a total consideration of Rs 20.000/-, of which Rs 5,000/- was received by the defendant on 16.6.79 and the balance amount of Rs 15.000/ - was to be paid by the Plaintiff at the time of execution of the sale deed. Thereafter, the plaintiff offered to pay the balance consideration of Rs. 15,000/- several times to the defendant but the defendant avoided execution of the sale deed. Since the 9 months period as stipulated in the "Baina-nama" was to expire on 16.3.80 the plaintiff informed the defendant on 12.3.80 that she was willing to go to the house of the defendant for execution and registration of the sale deed. On 13.3.80, the plaintiff was informed by the defendant's Advocate that the defendant was ready to execute the sale deed on 15.3.80 but she wanted 15 days time to remove her house from the land in question and that the possession would be delivered to the plaintiff on the same day. Accordingly, the plaintiff with her husband and the Sub-Registrar on commission arrived at the house of the defendant on 15.3.80 for execution and registration of the sale deed, but the defendant wanted 9 months time to vacate the land and refused to execute the sale deed and the Sub- Registrar returned without registering the document. It is on these facts, the plaintiff prayed for a decree directing the defendant to execute the sale deed, register the same and deliver vacant possession of the aforesaid land to the plaintiff. In the alternative the plaintiff prayed for refund of Rs 5,000/- paid as earnest money and compensation of Rs 1,550/ - from the defendant.

(3.) The defendant contested the suit by filing written statement and taking a plea, inter alia, that the plaintiff failed to tender the balance consideration of Rs 15,000/- on 15.3.80 and hence the sale deed was not executed by the defendant and the earnest money of Rs 5,000/- was forfeited by the defendant. On the aforesaid pleadings, 10 issues were framed by the trial Court and evidence, oral and documentary, were adduced by the parties and the learned trial Court held that the plaintiff tendered the balance consideration of Rs 15,000/- to the defendant before 16.3.80 to get the sale deed executed by the defendant but the defendant avoided execution of the sale deed after the plaintiff had offered to pay balance consideration for several! times and decreed the suit for specific performance of the agreement for sale. Against the judgement off the trial Court, the appellant-defendant preferred first appeal in the Court of the learned District Judge, Nagaon, but by judgement dated 10.6.85 passed in TA No. 4/84, the learned District Judge, Nagaon, dismissed the appeal and affirmed the judgement and decree of the trial Court directing the defendant to execute the sale deed within 3 months on getting balance consideration of Rs 15,000/- failing which the trial Court would execute the sale dged on deposit of the balance amount of Rs 15,000/- within a fortnight from the date of expiry of the aforesaid period of 3 months. It is this appellate judgement of the learned District Judge, Nagaon, passed in TA No. 4/84 which is under challenge in this appeal.