(1.) By this appeal appellant/plaintiff seeks to challenge the judgment and decree dated 22/12/1993 passed by the learned Assistant District Judge No.1, Kamrup, Guwahati in Title Suit No.142/89 dismissing the suit for specific performance of contract for sale and a decree for refund of Rs. 50,000.00 in lieu of specific performance of contract.
(2.) Plaintiffs case as staled in the plaint, in short is that wives of plaintiff and defendant/respondent are sisters. In or about 1974 defendant purchased a plot of land measuring about 1 katha 12 lechas described in Schedule A and constructed a Assam Type house in a portion thereof more fully described in Schedule-B to the plaint. Thereafter, defendant inducted tenant in the said house. During the last settlement operation which ended on 28/2/1987. new patta No.834 and Dag No.840 were given to the said land in or about 1987. Defendant started construction of RCC building on a portion of the said Schedule-A land in front of the Assam Type house. During construction of the RCC building, defendant needed money to meet the cost of such construction and accordingly, he met the plaintiff on 19/7/1987 and expressed his desire to sell the said Schedule-B land with Assam Type house thereon which is half of the said Schedule-A land to meet the cost of construction of RCC building. Schedule-B land measures about 16 lechas which is half of the Schedule-A land. Plaintiff agreed to purchase the said land Accordingly, Rs.1,25,000.00 was settled as price of the Schedule-B land with Assam Type house thereon. Accordingly an agreement in writing between the parties was prepared and signed on 11/9/1987 which reveals mat the defendant received an advance amount of Rs. 50,000.00 from the plaintiff as part of the consideration money of Rs. 1,25,000.00 for sale of the said Schedule-B land with Assam Type house thereon. It was further stipulated that the balance amount of Rs. 75,000.00 would be paid before final registration of the sale deed. Said advance payment was made and the agreement was made on 11.9.87 after the tenants had vacated the suit property mentioned in Schedule-B to the plaint. At the time of execution of the said agreement, vacant possession of the suit-property measuring about 16 lechas with Assam Type house thereon with water and electricity connection was given to the plaintiff on 11.9.87 itself.Agreement of sale was written by the defendant himself and the same was executed in presence of witnesses. Defendant also orally agreed to provide a seven feet wide passage to the main road (Soni Ram Bora Road) from the suit premises. Defendant also orally agreed that he would take all steps to obtain sale permission from the Deputy Commissioner. The agreement did not provide any specific time limit for execution and registration of the sale deed. However, it provided that execution and registration of the sale deed would be completed within reasonable time. Since execution of the agreement of sale, plaintiff is possessing and residing at the suit premises.
(3.) Since then on many occasions plaintiff informed the defendant that the plaintiff was ready and willing to pay the balance amount of Rs. 75,000.00 and accordingly-requested the defendant to execute and register the sale deed transferring the suit premises with Assam Type house there to the plaintiff after obtaining necessary sale permission from the Deputy Commissioner. Defendant replied that he had already applied for sale permission but till then he did not receive sale permission from the Deputy Commissioner and accordingly, he requested the plaintiff for some more time. However, on 24.6.89 plaintiff could learn that the defendant never applied for sale permission from the Deputy Commissioner and the Gauhati Development Authority (GDA) though defendant was making false representation that, in fact, he had applied for sale permission. In these circumstances when plaintiff met defendant with the same request, defendant told him that he never applied for sale permission and further that he would never apply for sale permission and also that he would not execute and register the sale deed as the balance amount of Rs. 75,000.00 was not given to him to complete construction of the RCC building. Due to non- payment of the said balance amount of Rs. 75,000.00 within a reasonable time, defendant could not complete construction of the RCC building and for these reasons defendant asked the plaintiff to vacate the suit premises. Defendant also demanded payment of balance amount of Rs. 75,000.00 for completing construction of the RCC building and upon receipt of the same he would apply for sale permission and after he is granted sale permission, he would execute and register the sale deed.