DANIJHA Vs. BISHWANATH THAKUR ALIAS BACHOL THAKUR

JUDGEMENT

(1.) Whether the averment and/ proof under Section 16(C) of the Specific Relief Act, 1963 (Compendiously'the Act) is to be proved by the plaintiff against the subsequent purchaser when the executant of the agreement for sale did not contest the suit is the substantial questions of law involved in this plaintiff's second appeal in a suit for specific performance of contract in respect of the suit land on the basis of Mahadanama (agreement for sale) dated 19th April, 1980 executed by defendant No. 1 in respect of 3 decimals of land appertaining to Cadestral Survey Plot No. 1602 and Revisional Survey Plot No. 3413 situate at Mouza Rasalpur, Police Station Dumra, District-Sitamarhi.

(2.) Chronology of events leading to the surfacing of dispute may be briefly noticed. The plaintiff-appellant filed a suit with the averments that Smt. Anmolia Ojhain, aunt of the plaintiff, executed a deed of gift in favour of defendant Nos. 1 and 2, who are full brothers and defendant No. 1 was the Karta of Joint Hindu Family and was in service in Assam. As the family needed money to meet legal expenses and to pay petty debts, defendant No. 1 approached the plaintiff to obtain a sale deed in respect of 3 decimals of land appertaining to C.S.P. No. 1602 and R.S.R No. 3413 as indicated above and the consideration was settled at Rs. 1800/-. A sum of Rs. 500/- as part payment was paid to defendant No. 1, who executed Mahadanama on 19th April, 1980 and promised to execute sale deed on 19th July, 1980 after obtaining permission from the Settlement Officer, Consolidation, but on that date even though plaintiff made request and was ready to pay balance of amount, the sale deed was not executed by defendant No. 1. The plaintiff went to registration office but defendant No. 1 was not prepared to execute sale deed, rather subsequently on 17th August, 1981 he executed sale deed in favour of defendant No. 3, who had got knowledge of the execution of Mahadanama. It was averred in the plaint specifically (as was clear from the narration of the facts made by the Appellate Court at the close of para-3 of the judgment) that the plaintiff has been and was ready and willing to perform essential part of contract but the defendants were not ready to perform their part of contract. Hence the necessity for the suit arose.

(3.) Defendant Nos. 1 and 2 (donees from Anmolia Ojhain) and particularly defendant No. 1, the executant of the agreement for sale, did not contest the suit and the suit was decree exparte against them. As is clear from the statements made by the Trial Court as also by the Appellate Court that only subsequent purchaser contested the suit denying the averments made in the plaint and alleged that the subsequent sale deed was genuine and legal and that the agreement for sale was not legal and the suit was liable to be dismissed.