BIBI JAIBUNNISA Vs. JAGDISH PANDIT

JUDGEMENT

(1.) PLAINTIFF is the appellant. She has lost in both the courts below.

(2.) ON 21.2.1969, by a registered sale deed, Bibi Jaibunnisa, the plaintiff sold one brick built house with tiled roof standing over 2 1/2 Kathas of land in Churi Mohalla of Giridih town for a consideration of Rs. 4000/ - (rupees four thousand) to the original defendant, Bimli Devi. Simultaneously, on the same day (21.2.1969), a registered deed of agreement for sale was executed by the defendant for re -conveyance of the aforesaid house to the plaintiff within a period of four years for the same consideration of Rs. 4000/ - (rupees four thousand). Out of the consideration amount, Rs. 50/ - was paid as advance to the defendant at the time of execution of the agreement and the balance amount of Rs. 3950/ -was agreed to be paid at the time of execution and registration of the sale deed. The period of four years was to expire on 21.2.1973, but due to the mistake of the scribe, the date of expiry was wrongly written as March, 1972 in place of February, 1973. As a part performance of the contract the possession of the premises was allowed to remain with the plaintiff and she continued and remained in possession of the said house. Several times in the year 1972 and lastly in January 1973, the plaintiff approached the defendant and offered her the balance amount of consideration money and requested to execute deed of re -conveyance, but she neither accepted the consideration money, nor executed the deed. The plaintiff, therefore, filed the suit for specific performance of contract for sale of the house in suit.

(3.) IN her written statement the defendant, inter alia, pleaded that the suit was not maintainable and was barred by limitation. On 25.1.1969, the plaintiff agreed to sell the suit house to the defendant and received a sum of Rs. 300/ - (Rupees three hundred) against the total consideration amount of Rs. 4000/ - and executed an agreement for sale. On 01.02.1969, the plaintiff advanced a further sum of Rs. 922/ - to the defendant and an additional agreement for sale was executed. Soon thereafter the defendant came to know that the plaintiff had already sold the suit house to Bibi Fatima, wife of Md. Usman by registered sale deed dated 2.11.1968 and Bibi Fatima, in her turn, had executed an agreement for re -sale of the suit property in favour of the plaintiff on the same day. The defendant, therefore, confronted the plaintiff regarding the fraudulent concealment of the aforesaid transaction. The plaintiff thereafter pressurised the defendant to pay her out of the balance of the consideration money further sum of Rs. 2200/ - to payoff Bibi Fatima in order to get the suit property re -transferred. The defendant had no other alternative, but to yield to it and so she paid the said amount. The plaintiff obtained transfer of the suit property by registered deed of sale dated 14.2.1969 from Bibi Fatima and thereafter on 21.2.1969 executed a deed of sale with respect to the suit property in favour of the defendant and at the time of execution, received balance of the consideration money. The defendant under coercion and threat and against her will and volition had to execute the deed of agreement for resale of the suit property in favour of the plaintiff on the same day. The defendant had absolutely no say in the matter. In the said deed, a sum of Rs. 50/ - was fraudulently and falsely shown to be paid by the plaintiff to the defendant as earnest money.