NATHUNI SAN Vs. KASHI NATH MISHRA

JUDGEMENT

(1.) The plaintiff appellant has filed this appeal against the judgment and decree passed in Title Appeal No. 49 of 1981 by the Additional District Judge V, Arrah, whereby the learned Additional District Judge had allowed the Title Appeal and set aside the judgment and decree passed by the Subordinate Judge, Buxar in Title Suit No. 66 of 1977. The learned Additional District Judge has also ordered that the plaintiff is entitled to recover Rs. 6.000/- with interest thereon from the defendant No. 5. The plaintiff appellant had filed the Title Suit for Specific Performance of Contract and in the alternative for recovery of a sum of Rs. 6.000/- from the defendant 2nd party and Rs. 1000/- from defendant first party, which had been decreed by the learned Subordinate Judge with a direction to defendant No. 1 to execute the sale deed in respect of the disputed land in favour of the plaintiff.

(2.) In short the case of the plaintiff appellant is that Raghunath Mishra had died in the state of jointness with defendant first party and defendant first party came in possession over the entire property. Raghunath Mishra had executed a registered Rehan deed for consideration of Rs. 6,000/- in favour of defendant second party in respect of the land in suit who came in possession over it as Rehandar. The defendant No. 1, who is karta of the family of defendant first party requested the plaintiff for payment of Rs. 2.000/- and agreed to sell the land in suit to him for consideration of Rs. 8.000/- and on that land Rs. 6.000/- had been taken earlier by him at the time of Rehan. The defendant No.1 received Rs.1000/- from the plaintiff and promised to execute the sale deed within three months and it was also agreed that the plaintiff will refund Rs. 6.000/- of the Rehan money. The plaintiff paid the amount of Rs. 6.000/- the Rehan money on 31-5-1974 to Satya Narain Rai (defendant No. 6) and Satya Narain Rai made an endorsement in respect of it on the back of the Rehan deed and returned the Rehan deed to the plaintiff. Inspite of request made by the plaintiff, the defendant first party did not execute the sale deed and did not receive the balance amount of Rs. 1000/-. The plaintiff was always ready to pay the amount of Rs. 1000/- to the defendant No. 1 and for getting the sale deed executed.

(3.) A written statement had been filed on behalf of defendant Nos. 3 and 4 and according to them Kashi Nath Mishra, defendant No. 1 was of week mind and half mad from childhood. In view of Section 12 of the Money Lenders Act, the defendant second party left the land under Rehan and these defendants came in possession over it. During consolidation of holdings these defendants got another land in place of the said land and these defendants are coming in possession over it. Further according to these defendants, Raghunath Mishra was the karta of the family during his life time and defendant No. 1 was of week mind during his (Raghunath Mishra) life time and these defendants used to manage their karobar with the help of others. The defendants had no necessity of Rs. 2000/- and defendant No.1 had not agreed to sell the land for Rs. 8,000/- and had not requested for the refund of the Rehan money and he had also not received Rs. 1000/- as advance from the plaintiff for selling the land. The plaintiff had no capacity to purchase the land and he had set up a group of Gundas and he had set up defendant second party to file this false ease to grab the land.