DINESH CHOWDHURY Vs. RAM CHUNIHERA

JUDGEMENT

(1.) This appeal has been preferred by the above named appellant who was defendant in the original suit being Title Suit No. 141/1991 and he was respondent in Title Appeal No. 15/1998. The suit of the plaintiffs respondents was dismissed in the trial Court but the said dismissal has been reversed by the Appellate Court and the suit has been decreed in favour of the plaintiffs-respondents.

(2.) The original suit was filed by Jhakia Devi the predecessor-in-interest of the present respondents. The suit was filed on the basis of an agreement for Specific Performance. Usual prayers were made in the suit filed under the provisions of Specific Relief Act for directing the defendant to execute the sale-deed on the basis of the agreement for sale after taking the consideration amount from the plaintiff and if the defendant does not execute the sale-deed within a specified time the same should be done by the Court. According to the plaintiffs, the suit property measuring fifteen and half decimals of land under Khata No. 443, Khasra No. 423 of Mouza Sajour, P.S. Sahkund, District. Bhagalpur, had been acquired by the plaintiffs on the basis of registered sale-deed dated 4-8-1971 execute by Sri Ishwar Chunihara and others and also from Chichia Harijan by sale-deed dated 19-11-1989 and 23-11-1989. After purchase the plaintiffs were in full cultivating possession of the suit land. A great necessity of money crept up as a result of which the plaintiff Jhakia Devi approached the defendant-appellant to sell out the land with a condition of repurchase. It was agreed upon that the plaintiffs would execute the sale-deed in favour of the defendant and if the amount of consideration is being repaid within three years time by the plaintiff to the defendant then the defendant would execute a return sale-deed to favour of the plaintiff. As per that agreement the plaintiff executed a sale-deed on 26-5-1986 in favour of the defendant on receipt of a consideration amount of Rs. 5,500/- and on the same date i.e. on 26-5-1986 as the contract earlier the defendant executed a registered agreement in favour of the plaintiff to the effect that he would execute a sale-deed on receiving of Rs. 5,500/- from the plaintiff in favour of the plaintiff within three years time. Within that three years time the plaintiff was not in a position to get re-conveyance of the deed and, as such, on her request another agreement was executed in favour of the plaintiff and the date of re-conveyance had been extended upto 30-4-1991. It is the case of the plaintiff that the requested the defendant to execute the registered sale-deed, but the defendant was delaying the matter on this pretext or the other. Thereafter, within the period the plaintiff sent a pleaders notice on 10-4-1991 under Certificate of Posting requesting the defendant to execute the necessary sale-deed by 30-4-1991 on receipt of an amount of Rs. 5,500/- but then the defendant did not execute. Then the plaintiffs issued a Registered notice with acknowledgment on 20-7-1991 requesting the defendant to execute the sale-deed. It was further stated by the plaintiff that at all material time the plaintiff was ready to give the amount of Rs. 5,500/- to the defendant but the defendant did not perform his part of contract. Hence, the suit was filed.

(3.) The suit was contested by the defendant by filing written statement. The title of the plaintiff over the suit property and then its sale to the defendant and execution of two agreements successively are all admitted but the defendants case is that the plaintiff was having bereft of money at any point of time and she did never make any request to the defendant within the specified time to execute the sale-deed. Only after the expiry of the period the plaintiff with ulterior motive gave notice and then filed the present suit.