RAWTI DEVI AND ORS Vs. MAHABIR

JUDGEMENT

(1.) Defendants having failed in both the Courts below have filed the instant second appeal.

(2.) Respondent-plaintiff-Mahabir filed suit against the appellants for possession of suit land measuring 6 Bighas 15 Biswas by specific performance of the agreement to sell dated 28.08.2006. Plaintiff's case is that defendants No. 1 to 4 representing themselves to be owners of 8 Bighas 8 Biswas land out of 75 Bighas 14 Biswas joint land agreed to sell the same to the plaintiff at the rate of Rs. 68000/- per Biswa and received Rs. 2,00,000/- as earnest money and executed agreement dated 28.08.2006. However, later on, it transpired that share of defendant Nos. 1 to 4 was only to the extent of 6 Bighas 15 Biswas and the remaining share of 1 Bigha 13 Biswas was of their mother. On 01.03.2007, defendant No. 2 further received Rs. 10000/- from the plaintiffs. Sale deed was to be executed on 30.04.2007. On the said date, the plaintiff went to the office of Sub-Registrar to get the sale deed executed in terms of the agreement, but the defendants did not turn up. On the other hand, defendant Nos. 1 to 3 sold the land of their share (5 Bighas 1 Biswa) to defendants No. 5 and 6 vide sale deed dated 04.05.2007. The said sale deed was also challenged in the suit. Plaintiff always remained ready and willing to perform his part of the contract whereas defendants committed breach thereof.

(3.) Defendant Nos. 1 to 4 in their written statement admitted the execution of agreement dated 28.08.2006 in favour of plaintiff and also admitted that sale deed was to be executed on 30.04.2007. It was, however, pleaded that plaintiff did not pay the balance sale consideration. The defendants went to the office of Sub-Registrar on 30.04.2007 and got their presence recorded. The plaintiff himself was not ready and willing to perform his part of the contract and, therefore, earnest money paid by the plaintiff stood forfeited. Defendant Nos. 1 to 3 were in need of money and, therefore, they sold 5 Bighas 1 Biswa land out of the suit land to defendant Nos. 5 and 6 vide sale deed dated 04.05.2007 for Rs. 4,25,000/-. Defendant Nos. 5 and 6 in their written statement claimed themselves to be bona fide purchasers of 5 Bighas 1 biswa land from defendant Nos. 1 to 3 vide sale deed dated 04.05.2007 for Rs. 4,25,000/-, without knowledge of the alleged agreement dated 28.08.2006.