(1.) This Second Appeal has been preferred against the judgment dated 18th September, 1989 and decree dated 25.9.89 passed by Sri L.W. Kujur, Second Additional District & Sessions Judge, Munger, in Title Appeal No. 30 of 1988 reversing the order of dismissal of the suit dated 23.4.1988 passed in Title Suit No. 45 of 1985 by Sri Gauri Shanker Poddar, Sub-Judge IV, Hunger.
(2.) The brief facts of the case is as follows: The plaintiff-respondent Bibi Salma Khatoon filed Title Suit No. 45 of 1985 in the Court of Sub-Judge, Hunger, stating therein that the defendant-appellant Smt. Sudama Devi offered her to sell the suit land and the plaintiff-respondent agreed to purchase the suit land for a valuable consideration of Rs. 7500/-. Thereafter, Bayanama (agreement for sale) was executed by the defendant-appellant in favour of the plaintiff-respondent on 28.4.83 after payment of Rs. 7,000/-. As per the terms and conditions incorporated in the Bayanama, it was agreed that the defendant-appellant shall execute the sale deed in favour of the plaintiff-respondent within April 1984 after receiving Rs. 500/-, the rest consideration money. After Bayanama the plaintiff was put in possession of the suit land. Subsequently, the defendant-appellant executed a registered sale deed in favour of the plaintiff on 5.4.84 in respect of the suit property. Further case of the plaintiff-respondent is that after the execution of the sale deed it was stipulated that at the time of handing over the Chirkut (registration receipt) the remaining money i.e. Rs. 500/- will be paid by the plaintiff- respondent to the defendant-appellant. Accordingly, on 15.7.84, the plaintiff's husband approached the defendant-appellant to receive the remaining consideration amount to the tune of Rs. 500/-and hand over the Chirkut but the defendant-appellant asked him to come again as her husband was not present at the house. The plaintiff-respondent again sent her husband to the defendant on several occasions with the remaining consideration amount but on one pretext or the other the defendant refused to accept the consideration money and not handed over the Chirkut. Lastly, on 20.10.84 the defendant-appellant refused to accept the remaining consideration amount and to hand over the Chirkut. Thereafter, the plaintiff sent a lawyer's notice to the defendant which was received by her on 18.3.85 but when in spite of service of notice the defendant-appellant did not hand over the registration receipt then the plaintiff-respondent filed the suit.
(3.) The defendant-appellant appeared in the suit and contested the claim by filing the written statement. Her case, in brief, is that the suit as framed is not maintainable. The plaintiff has got no cause of action to file the suit. The suit is barred by law of limitation, estoppel and waiver. Further case is that it is false to say that the defendant-appellant had agreed and negotiated to sell the suit property to the plaintiff-respondent. It is false to say that the proposal was accepted by the plaintiff and thereafter Bayanama was executed by the defendant-appellant after receiving rupees seven thousand. It is also false to say that the defendant-appellant had agreed to receive the remaining consideration amount i.e. rupess five hundred at the time of execution of sale deed and, accordingly, on 5.4.84 she executed a sale deed in favour of the plaintiff-respondent. It is also incorrect to say that at the time of execution of sale deed it was agreed that the balance consideration amount shall be paid at the time of exchange of Chirkut and that the plaintiff's husband had visited her house with the remaining consideration money but she did not accept the same and on one pretext or the other she refused to accept the same and lastly on 20.10.84 she refused to hand over the Chirkut. Further case is that one Sheikh Gholta was her neighbour who told her that the government had decided to give monthly pension of rupees two hundred to the members belonging to Gorhis community and as she belongs to Gorhis community, she would get monthly pension. It is said that on that pretext Sheikh Gholta took her L.T.I. on some blank papers as well as on stamp paper on or about 24.8.83 and it was suspected that the said blank papers and stamp paper would have been converted into a document of agreement of sale as well as of sale deed. It has been stated that the defendant-appellant had never executed any agreement for sale or sale deed in favour of the plaintiff. It is further said that the defendant-appellant was a Pardanasheen and illiterate lady and Sheikh Gholta had fraudulently obtained her L.T.I. on some blank papers/stamp paper by giving assurance that she would might Ret old age pension which she never received. It is further contended that the defendant-appellant does not know either the plaintiff or her husband and her husband had never tendered any consideration amount amounting to Rs. 7000/- or the remaining consideration amount amounting to rupees five hundred. The prayer has been made to dismiss the suit.