RAJ KR. SINGH Vs. MADHURI KUMARI @ MADHUBALA

JUDGEMENT

(1.) The original plaintiff Rameshwar Prasad Singh had filed this first appeal against the judgment and decree dated 18.04.1979 passed by the learned 6th Additional Sub-Judge, Chapra in Title Suit No.150 of 1971 dismissing the plaintiff's suit for specific performance of contract. The original plaintiff has died and his legal representatives have been substituted in his place.

(2.) The plaintiff filed the aforesaid title suit for specific performance of contract alleging that the defendant no.1 Chandra Prabha Devi (after death substituted in appeal) for self and on behalf of her minor children, defendant nos.2 to 4, had entered into agreement to sell her suit property. She was the mother of defendant nos.2 to 4, who was also their guardian. The defendant no.5 is a firm who is represented by his one partner Raj Kumar Prasad (defendant no.6). According to the plaintiff, in Schedule-I land measuring 4 katha there was dilapidated house and in one shop the plaintiff is running his business as tenant of defendant no.1. On 04.09.1969 there was agreement between the parties for reconstruction of the plaintiff's shop and accordingly the plaintiff constructed his shop spending huge money. In partition, the suit property was allotted in favour of defendant nos.1 to 4. Madhuri Kumari, the defendant no.2, has recently attained her majority and she was married on 02.07.1971. The defendant no.1 started constructing a market in Mohalla-Salempur after taking loan and the market is know as "Krishna Market". In that "Krishna Market" several shops were running on rent and out of the said income the defendant no.1 was maintaining the family and the minor children were being given education. The defendant no.1 and her family were residing on the upper floor. The income of the market was not sufficient to repay the loan taken by defendant no.1 and also the defendant no.1 had to marry her daughters, therefore, she negotiated to sell the suit property for self and as guardian of her minor children. The negotiation between the plaintiff and defendant no.1 was finalized on 12.02.1970 and consideration amount was fixed at Rs.50,000/-. The plaintiff had only Rs.10,000/- in cash, therefore, it was agreed that the defendant no.1 would execute a deed of agreement for sale with stipulation that plaintiff shall arrange the balance amount of Rs.40,000/- within one year and the sale deed shall be executed and registered for self and on behalf of her minor children within the aforesaid period. Accordingly, the defendant no.1 by her employee Ram Kripal Singh got purchased the stamp paper and agreement was executed on 01.03.1970. Rs.10,000/- was paid to the defendant no.1 as earnest money. It was agreed that the plaintiff shall remain in possession of shop as a purchaser from the date of execution of the agreement and the plaintiff agreed that the defendant nos.1 to 4 shall continue on the other portion of the property till registration of the sale deed.

(3.) The further case of the plaintiff is that the defendant nos.6 to 8 are closely connected with defendant no.1. The defendant no.6 and his father Hari Nath Prasad were present at the time of negotiation for sale of the land as well as at the time of execution of the agreement to sell. Therefore, these defendants had full knowledge of the agreement dated 01.03.1970. In fact the defendant no.6 and his father were assisting/helping the defendant no.1 during negotiation and were giving advice to her. They remained till the negotiation was finalized and agreement was executed and payment was made. However, when the plaintiff after arranging money went to defendant no.1, the defendant no.1 avoided the execution and registration of the sale deed. Subsequently on enquiry the plaintiff found that the defendant no.6 in collusion with defendant no.1 obtained the sale deed from the defendant no.1 with respect to the suit property. After obtaining certified copy, the plaintiff came to know that the sale deed was executed for Rs.60,000/-. The stamp for the sale deed was purchased on 20.02.1971 but according to law on that date the stamp is generally not given from the treasury. The sale deed was executed secretly and was registered on 21.02.1971 which was Sunday and the court was closed. The sale deed and the agreement said to have been executed between them earlier are fraudulent, collusive and the defendant no.6 purchased the property with knowledge of the agreement between the plaintiff and defendant no.1. The plaintiff is still in possession of sub-premises.