HARDWAR SINGH Vs. LAL MUNNY KUER

JUDGEMENT

(1.) The plaintiffs have filed this second appeal against the judgment and decree of the lower appellate court dated 9.7.1990 passed by the 4 th Additional District Judge, Aurangabad in Title Appeal No. 65 of 1983/ 10 of 1987 reversing the judgment and decree of the trial court dated 29.8.1983 passed by Sri R.V. Ram, 2 nd Additional Subordinate Judge, Aurangabad in Title Suit No. 114 of 1978/ 38 of 1982.

(2.) The plaintiffs appellants filed the aforesaid title suit for declaration that the plaintiffs have acquired valid right, title and interest in the suit land on the basis of the registered sale deed dated 25.4.1977 executed by defendant No.1 in favour of the plaintiffs and also prayed for recovery of possession. The plaintiffs further prayed for a direction to the defendants to perform the ta khubzul badlain and in case the sale deed has been withdrawn by the defendants the same may be handed-over to the plaintiffs. The plaintiffs also claimed that they are ready to pay balance consideration money to the defendant No.1 if the court directs so and prayed for permanent injunction.

(3.) The plaintiffs claimed the aforesaid relief on the facts inter alia that defendant No.1 executed a sale deed on 25.4.1977 for a consideration of Rs.10000/- in favour of the plaintiffs. Rs.1000/- was paid as earnest money and it was agreed that the rest consideration amount would be paid at the time of exchange of equivalent i.e. ta khubzul badlain. Subsequently, further Rs.1000/- was paid to the defendant on 6.5.1977. The plaintiffs have been always willing and ready and still ready to pay the balance consideration amount but the defendant is avoiding to exchange the ta khubzul badlain. On 27.9.1977 the plaintiffs sent notice through his counsel and the defendants expressed his willingness to accept the balance of consideration money but deliberately he omitted to mention that he has received the subsequent payment of Rs.1000/-. Reply to the notice was sent to the effect that the plaintiffs are ready to pay balance of Rs.8000/-. Subsequently, on 25.11.1977 again Rs.6000/- out of Rs.8000/- was paid.