KIRAN SINGH Vs. SOURJA BANERJEE

JUDGEMENT

(1.) Heard learned counsel for the appellants as well as learned counsel for the respondent.

(2.) This Second Appeal under Sec. 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') has been filed by the appellants against the judgment and decree dtd. 21/8/1997 passed by learned 3rd Additional District Judge, Bhagalpur (hereinafter referred to as 'Appellate Court') in Title Appeal No.04 of 1994 wherein learned Appellate Court reversed the judgment and decree dtd. 31/8/1990 passed by learned Sub Judge-I, Bhagalpur (hereinafter referred to as 'Trial Court') in Title Suit No.178 of 1978 holding that the plaintiff (respondent herein) has got no valid cause of action and that she has failed to perform her part of contract.

(3.) The genesis of the case, as borne out from the pleadings and the materials available on record, is that the plaintiff/respondent instituted Title Suit No. 178 of 1978 seeking a decree for specific performance of an agreement for sale dtd. 7/7/1974 in respect of the suit property situated at Mohalla Adampur, Bhagalpur, and, in the alternative, for a declaration that the registered sale deed dtd. 21/7/1973 executed in favour of defendant no.1 (appellant no.1) did not confer valid title upon her, along with recovery of possession. The case of the plaintiff, in substance, was that owing to financial distress and outstanding dues of the Central Bank of India, she obtained a sum of Rs.30,000.00 from defendant no.2 (appellant no.2) and, as security for the said loan, executed a registered sale deed dtd. 21/7/1973 in favour of defendant no.1, though the transaction was never intended to be an absolute sale. It was further pleaded that she continued in possession of the suit property and that subsequently, on 7/7/1974, an agreement for re-conveyance was executed whereby the defendants (appellants) agreed to transfer the property back to her on receipt of the stipulated consideration. It has further been asserted that the respondent paid the consideration amount in installments, including a lump sum payment (Rs.15,000.00) towards the last four installments and stamp expenses in August, 1975, but despite such payment the defendants failed to execute the re-conveyance deed and ultimately dispossessed her forcibly on 30/10/1975. The defendants, however, contested the suit by asserting that the sale deed dtd. 21/7/1973 was an out and out sale for valid and adequate consideration, that possession had been delivered on the date of execution itself, that the plaintiff failed to perform the terms of the alleged agreement dtd. 7/7/1974 within the stipulated time, and that the story of mortgage and subsequent dispossession was wholly false.