MAHIRUDDIN BORBHUIYA Vs. MUSTT RYTHUN NESSA

JUDGEMENT

(1.) This appeal has been filed by the defendant. The plaintiff filed a case for declaration that the sale deed dated 2-1-84 described in the Schedule 'C' of the plaint is voidable as the defendant failed to pay the balance amount of the consideration money of Rupees 45,000/- for which the deed was made. It was the further prayer that this deed of sale be rescinded, delivered and cancelled, and also for delivery of khas possession of the suit land.

(2.) The case of the plaintiff was that in the middle of December, 1983, the defendant No. 1 sent his cousin, a co-villager of the plaintiff to the house of the plaintiff with the proposal whether the plaintiff is willing to sell her land described in the Schedule 'A' of the plaint. The defendant No. 1 agreed to purchase the same on the market value. After about a week it was informed by the defendant to the plaintiff that the agreement for sale will be made/executed and the plaintiff was asked to go there with her husband. The purchase of the land was agreed to and it was agreed that the price of the land shall be Rs. 50,000/- and the defendant No. 1 wanted to make an advance of Rs. 5,000/- and on receipt of Rs. 5,000/- an agreement of sale shall be executed and balance amount of Rs. 45,000/- shall be paid within a period of two months from the date of execution of the bainama. It was further agreed that on receipt of the advance amount of Rs. 5,000/- the delivery of the possession of the land shall be given in favour of the defendant. Thereafter, on 2-5-83 a document was registered in the Office of the Sub-Registrar and the plaintiff was waiting for about 2 months for the balance amount of money and for execution of the sale deed. As the defendant No. 1 did not come to pay the balance amount of money, the plaintiff went to the place of the defendant and asked him to pay the balance amount of money. At that time the plaintiff was told that already a deed of sale has been executed and she has nothing to receive. Thereafter, the plaintiff obtained the certified copy of the deed executed by her and came to know that a fraudulent sale deed was executed for the entire land for Rs. 5,000/-. The plaintiff further stated that the price of the land of 15 kathas cannot be Rs. 5,000/- and it will be more than Rupees 50,000/-. The plaintiff further stated in the plaint that the defendant himself sold 3 Kathas of the suit land to the defendant No. 6 on 3-1-84 just after about 7 months of the execution of the deed at Rs. 6,000/- meaning thereby that the price of the land even if agreed to earlier with the defendant will be Rs. 30,000/- and there was no revelant reason whatsoever for the plaintiff to part with 15 Kathas of land at a nominal value of Rs. 5,000/-. The plaintiff stated that it was a case of fraud and accordingly, this suit was filed.

(3.) The defendant contested the suit. The defence taken up by the defendants Nos. 1 to 5 was that the deed executed and also registered on 2-5-83 was out and out a deed of sale and the claim of the plaintiff that it was agreed that the value of the land will be Rs. 50,000/- and the balance amount will be paid within a period of two months are all false pleas. The defendant further stated that the plaintiff was not in a position to manage the land as it was situated at a far distant place from her residence and as such she decided to part with the land at whatever value may be realised.