UMESH PRASAD YADAV Vs. PUSPA SINHA AND ORS.

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and decree dated 31.07.1993, decree sealed and signed on 21.08.1993, passed in Title Suit No. 166 of 1989 by the learned 4th Subordinate Judge, Bhagalpur in the matter of Smt. Puspa Sinha and Ors. Plaintiffs v. Umesh Prasad Yadav Defendant. The defendant is the appellant and the plaintiffs are the respondents in this appeal.

(2.) THE aforesaid title suit was filed for specific performance of contract directing the defendant to execute and register sale deed in their favour with respect to 16 Katthas and 7 Dhurs of land with measurement of 1102 Sq. Feet per Kattha out of 1 Acre 22 Decimals of land of Thana No. 22, Khata No. (old) 121 Khata No. (new) 94, Khesra No. (old) 332, Khesra No. (new) 416 fully described in Schedule B of the plaint (hereinafter referred to as the suit land) within time fixed by the court on receipt of the balance consideration amount of Rs. 1,45,644/ - and in case of failure, sale deed be executed and registered by the court after deposit of the said amount in the court and also for a decree for delivery of possession and for permanent injunction restraining the defendants from transferring the suit land or causing any interference with the possession of the plaintiffs over the suit land and further for compensation of Rs. 15,000/ -. Alternatively, it has also been sought that if the plaintiffs are not found entitled to a decree of specific performance of contract, then a decree for refund of Rs. 10,000/ - with interest at the rate of 16 % per annum be passed in favour of plaintiffs and against the defendant as well as for the cost of the suit.

(3.) ON the other hand the case of the defendant, shortly stated, is that the deed of agreement for sale stand cancelled by notice dated 16.06.1989. The suit land is jointly held by the defendant and his brothers and, as such, the suit is bad for non -joinder of the necessary parties. The defendant, in urgent need of money for purchase of land and house and for meeting other expenses such as marriage of his daughter, has agreed to sale the land and the plaintiffs agreed to purchase the same at the said price and for that the land was got measured in presence of the plaintiffs and their karpardaz. The map of the suit land was prepared at the direction of the plaintiffs and of the defendant. The payment of Rs. 10,000/ - was made by way of security for the due performance of contract and it was agreed that in case of default in payment of rest consideration money and non -performance of the contract by the plaintiffs within the stipulated time the earnest money shall stand forfeited as penalty. The time was the essence of the contract and, as such, the agreement for sale dated 03.05.1989 stands cancelled after expiry of one month time. The plaintiffs played fraud by wrongly incorporating delivery of possession in the agreement whereas the delivery of possession of the suit land by the defendant to plaintiffs was conditional on payment of entire consideration money, no delivery of possession was given to the plaintiffs and the defendant being in possession is growing crops thereon. The agreement to sale is unregistered and is not admissible in evidence. The plaintiffs have assured to pay the entire consideration money immediately and to get the sale deed executed and hence, they pleaded to defendant that in order to avoid further dispute construction of boundary wall may be permitted over the suit land. The plaintiffs have not collected materials like bricks and others over the suit land and the plaintiffs have also not dug pucca well on any portion of the suit land. As a matter of fact a kachha well with bricks surface has been built by the defendant for irrigation of the suit land three years ago. Regarding rasta left by the plaintiffs and defendant in equal share and the defendant is also always ready and willing to act according to the map after the execution of the sale deed and payment of balance consideration money. The defendant approached the plaintiffs for payment of the balance consideration money on several occasions but they failed to pay the balance consideration money. The plaintiffs after the agreement started imposing new conditions by asking the defendant to bear the cost of pucca boundary wall on the boundary of the suit land before payment of the rest consideration money and further for laying of common road towards east before execution of the sale deed. As a matter of fact the plaintiffs have no sufficient money to pay the balance consideration amount and hence, they evaded the matter on frivolous grounds. The defendant after execution of the agreement to sale negotiated for purchase of 1 and 1/2 Bigha of land at village Bagadar for Rs. 45,000/ - with Anup Yadav on 10.05.1989 and paid Rs. 2,000/ - to him and balance amount was to be paid by 28.05.1989 but due to non -payment, the earnest money of Rs. 2000/ - has been forfeited and defendant failed to purchase the same and further the defendant did not purchase the house at village Sabour which has been sold to Ram Bilash Mandal. The defendant approached the plaintiffs several times for payment of balance consideration money and for getting the sale deed executed but the plaintiffs failed to perform their part of contract within time agreed. Further the marriage of the daughter of the defendant could not be solemnized for want of money and thereafter, his daughter was married in October, 1989 and he had to sale 2 Katthas extra land on 03.10.1989 and, in this way, the purpose was frustrated. It is wrong to say that the plaintiffs were all along ready and are still willing and ready to perform their part of contract. It is wrong to say that the plaintiffs managed money on higher rate of interest and approached the defendant through Dr. Pradeep Kumar. The plaintiffs started sending legal notices to save themselves from penalty clause. The defendant extended one week time by his reply notice dated 06.06.1989 but the plaintiffs in stead of performing their part of contract, unnecessarily sent notices after notices. In reply notice, dated 16.06.1989, again the defendant gave one week time to the plaintiffs to hand over approved draft copy of sale deed but the plaintiffs failed to comply the same and balance consideration money was also not paid. The plaintiffs threatened by notice dated 13.06.1989 to institute a suit and against that reply was sent on 19.06.1989 by which the agreement stands cancelled. The defendant has to sale the adjacent property and, as such, the plaintiffs have got no right to enforce the contract and to seek relief as claimed. In the additional written statement it has been stated that negotiation for the purchase of the suit land was started on 01.05.1989 and on the date of agreement for sale the plaintiffs had only Rs. 10,000/ - and, as such it is wrong to say that the plaintiffs had taken a demand loan of Rs. 1,05,700/ - on 19.04.1989 through Dr. Pradeep Kumar and if it was so, then, the plaintiff would have paid the entire consideration money and had got the sale deed executed. The plaintiffs had to purchase the stamp for sale deed as per prevailing custom. Certificate dated 02.07.1990 has been manufactured after filing of the suit. The sale deed dated 03.10.1989 executed by the defendant in favour of plaintiff No. 1 is outside the land covered under the agreement to sale dated 03.05.1989 and it is an independent transaction. The defendant never got the suit land measured and he did not get the map prepared by Amin. The plaintiffs never tendered the balance consideration money and they were/are not willing to perform their part of the contract at any point of time. The plaintiffs always demanded possession of the suit land before payment of the consideration money contrary to the terms of agreement and, as such, the suit of the plaintiffs is fit to be dismissed.