AMAR SINGH Vs. BALIRAM SINGH

JUDGEMENT

(1.) This Second Appeal has been preferred against the judgment dated 26th September, 1987 and decree dated 9.11.87 passed by the 3rd Additional District Judge, East Champaran at Motihari, in Title Appeal No. 95 of 1977 / 36 of 1987 whereby he has been pleased to set aside the judgment dated 14th May, 1977 and decree dated 30.5.77 passed by Sri S. N. Sinha, 1st Additional Sub-Judge, Motihari, in Title Suit No. 82 of 1974 / 137 of 1976 and decreed the suit of the plaintiff for specific performance of contract.

(2.) Brief facts of the case of the parties are as follows: The plaintiff Baliram Singh finalised talk of sale of 5 Kattha 16 dhurs of land of village Gobindpur on payment of consideration money amounting to Rs. 6.000/- with the defendant Atma Singh and, accordingly, on 14.4.73 the plaintiff paid rupees one thousand to defendant Atma Singh by way of earnest money but as the plaintiff and defendant were Gotiyas, as such, no hand note was required to be executed with respect to the payment of earnest money. The defendant promised to take the balance amount of consideration money after registration of sale deed at the time of exchange of the registration receipt. After finalisation of talk, the defendant Atma Singh asked the plaintiff to purchase the stamp for getting the sale deed registered. Accordingly, on 16.4.1973, the plaintiff purchased the stamp and informed the defendant regarding the purchase of stamp. The plaintiff also informed the defendant that he was ready to pay the balance consideration amount, whereupon, the defendant assured the plaintiff that he would register the sale deed on 18.4.73 as on that very date he had to register one more sale deed. Further case is that on 18.4.73 the defendant along with Yadu Nath Singh, the identifier came to Motihari and instructed Hari Shanker Prasad, Katib to write the contents of the sale deed who at the instance of defendant wrote the contents of the sale deed. Thereafter, the said Hari Shanker Prasad read over and explained the contents of the sale deed to defendant Atma Singh, who after finding the contents of the sale deed correct put his L.T.I on the sale deed and Yadu Nandan Singh became witness and identifier on the sale deed. Further case is that on that date the time of registration lapsed and, as such, the documents could not be produced before the registry office for registration then both the parties agreed that on the next date the document would be registered. On the next date the plaintiff approached the defendant but on the pretext that he was suffering from acute dysentery the defendant showed his inability to go to Motihari for getting the sale deed registered. However, he asked the plaintiff to keep the sale deed in his possession and promised that on recovery he would get the sale deed registered. Thereafter, on several occasions the plaintiff requested the defendant to get the sale deed registered but the defendant put off the matter until the time for registration was over. It is further said that the plaintiff was always ready to pay the remaining consideration money and to meet the registration expenses but the defendant failed to get the sale deed registered and, hence, the necessity of filing the suit for Specific Performance of Contract arises.

(3.) The defendant appeared and filed written statement stating therein that it was not correct to say that he had agreed to sell his land and execute sale deed for consideration of rupees six thousand out of which rupees one thousand was paid by way of earnest money. He has also denied this fact that he had asked the plaintiff to purchase the stamp nor he had made any promise to get the sale deed registered after receiving the rest consideration amount at the time of exchange of registration receipt. It is not correct to say that the plaintiff had purchased stamp for execution of sale deed on 16.4.73 and had informed the defendant about the purchase of stamp. The defendant has also denied this fact that he had told the plaintiff that he had promised the plaintiff to execute the sale deed and get it registered. It is also untrue that the defendant came to Motihari on 18.4,73 for executing the sale deed nor he asked scribe Hari Shanker Prasad to write the contents of the sale deed nor scribe Hari Shanker Prasad read over and explained the contents of the sale deed to the defendant. The defendant has also denied this fact that he had put L.T.I. over the sale deed which was identified by Yadu Nath Singh. The defendant has made averment that the alleged sale deed dated 18.4.73 is forged, fabricated, anti dated and without any consideration and the same has never been executed by the defendant. The allegation that due to late hour the sale deed could not register is false and concocted. It has been stated that the fact is that the defendant is an illiterate and rustic fellow and one Ram Bilash Singh resident of village Motiyarri is very clever and litigant. On 17.11.73, Ram Bilash Singh called the defendant at his house and forcibly took his L.T.I. on a plain stamp paper and plain paper for which the defendant filed a case before the Gram Panchayat which was dismissed for the lack of jurisdiction. It is further said that the said Ram Bilash Singh has instituted Title Suit No. 80 of 1974 against the defendant on the basis of the L.T.I of the defendant forcibly taken by him. It is further stated that there is possibility that the said Ram Bilash Singh had converted those papers on which L.T.I. of the defendants were forcibly taken into sale deed. Further case of the defendant is that the defendant has already executed a deed of gift in favour of Bhagina Amar Singh on 15.2.1974 in respect of the suit property. The gift has been accepted by the said Amar Singh and he is in possession of the said land. After the death of Atma Singh, the name of Amar Singh has been substituted in his place. On the basis of the above pleadings, the original defendant Atama Ram Singh prayed to dismissed the suit.