DIWALI LAL Vs. BALDEV SINGH

JUDGEMENT

(1.) This appeal by the defendants, is directed against the decision given by the Additional Subordinate Judge, VIth Court, Patna, whereby he decreed the suit of the plaintiffs for specific performance of contract.

(2.) The case of the plaintiffs is that defendant No. 1 Diwali Lal and father of defendant No. 3, namely, late Hazari Lal who were full brothers, were carrying on business under the name and style of Bhagwan Das Baijnath Lal at Padri Ki Haveli, Patna City. After the death of Hazari Lal, defendants Nos. 2 and 3 carried on the said business along with defendant No. 1 under the Kartaship of the latter. Their business, however, suffered loss and they became indebted to different persons and eventually the business was closed in 1971. They used to take loans from the plaintiffs as well and they had become debtor to them to the tune of Rs. 34000/-. They owed money to the other creditors as well. When the creditors started pressing for the repayment of the loans the defendants decided to sell the suit property which is a double storied building over an area of 68 karris bearing plot Nos. 2492 and 2493 situate in Mohalla Kasera Galli, within Khajekalan Police Station. When they proclaimed for the sale of the said building, the plaintiffs offered to purchase the same for a consideration of Rs. 80,000/-. Considering the amount offered by the plaintiffs to be reasonable, the defendants agreed to sell the building to them for the said consideration. Accordingly, the details of the terms were settled and the defendants accepted Rs. 1,000/- as earnest money and executed an agreement to sell on 29-11-1974. According to the agreement, a sale deed was to be executed by the defendants by 15-12-1974 on being offered Rs. 45,000/- by the plaintiffs at the time of the execution of the sale deed after adjustment of their dues to the tune of Rs. 34,000/- and the earnest money of Rs. 1,000/-. On 12-12-1974 the plaintiffs purchased requisite stamps for the sale deed from the Patna Treasury in the name of plaintiff No, 1 and made over a draft of the sale deed to defendant No. 1 for approval. He offered to pay balance of the consideration money at the time of registration of the sale deed, but the defendants went on evading the execution of the sale deed. When the plaintiffs found that the defendants were not willing to execute the sale deed in spite of repeated requests made by them, they instituted the present suit for specific performance of contract on 14-3-1975.

(3.) The suit was contested by the defendants. One written statement was filed by the defendant No. 1 and the other by defendants Nos. 2 and 3, but the case put forward in both the written statements was the same. They have admitted that they were carrying on business under the name and style of Bhagwan Das Baijnath Lal, but according to them, this business was closed when a partition took place in the family in 1969 and in course of which all the family properties were partitioned. According to them, the suit property fell in the share of one Bangali Lal in the said partition and since then he is coming in possession thereof as exclusive owner and these defendants have nothing to do with the same.