BRIJNANDAN SINGH Vs. JAMUNA PRASAD SAHU

JUDGEMENT

(1.) The matter in controversy in this case is the specific performance of a contract, as covered by; the registered document dated 15-6-1943. Thereunder defendant No. 1 the proprietor of the eight annas interest in touzi No. 744/34 had agreed to give in perpetual lease his half share in 32 bighas of Zirat and bakasht lands of that tauzi lying inkhata No. 618 to two persons (1) Jamuna Prasad . Sahu (Plaintiff No. 1) and (2) jagarnath Prasad Sahu (originally defendant No. 2 and subsequently transposed to the category of plaintiff No, 2) on terms as stated thereunder. Two of those terms were that that the Settlees in return would pay rent for it at a fixed rate of Re. 1 /- per bigha and nazanina at the rate of Rs. 1162-8-0 per bigha. It seems that at that time the defendant appellant was hard-pressed for money, as he had to make payment of a mortgage decree, which was then under execution against him on behalf of two persons (1) Ramji Singh and (2) Ragho Singh; and it has for that that he had decided to part with some of his bakasht and zirat lands. But at that time those zirat and bakasht lands were in the possession of his rehandars and one of the terms agreed upon with them was that the land given in rehan could be redeemed only in the month of Jeth, that means always just before the commencement of the next agricultural year. It was, however, unfortunate that the agreement for lease could be completed only at or about 27th of Jeth 1350 Fasli, when the month of Jeth was practically closing. So there was hardly time enough for the parties to complete then entire transaction including the payment of the nazarana amount within that short period of a few days that had still t6 expire, id the month of Jeth. And the danger was that if payments were not made to the rehandars within those three days then on the one hand they would not agree to give up their possession for the next one year and 'on the other the settlees in that case would not be willing to stand by the agreement unless they got immediate possession from the next succeeding agricultural year. Therefore, in order to obviate that contingency, the parties to the agreement arranged that the transaction should be completed in two stages; firstly by the execution of an agreement, as was done under the aforesaid registered deed, dated 15-6-1943, and then by the execution of a final document of lease within a period of two months from that date on the payment of the entire nazarana money. Thus, they thought that they would get about two months' time' sufficient to complete the entire transaction and in the meantime under the first document authority was given to the lessee to pay up the rehan money to the rehandars and in return for it to take possession of those lands from them. Further, according to the averments made in the plaint, this was also agreed upon :

(2.) The case of the plaintiffs is that pursuant to the aforesaid agreement, a sum of Rs. 5,138-8-0 was paid to some of the rehandars in part satisfaction of the defendant's share of debt. Yet in spite of repeated demands, the defendant appellant has been all along unwilling to receive the balance of the nazarana money and to execute the final document of lease, as agreed upon and hence the suit giving rise to this appeal.

(3.) Originally there were two suits, one by each of the two plaintiffs. Title Suit No. 72 of 1946 was on .behalf of plaintiff No. 1 Jamuna Pra-sad Sahu and was instituted on 14-8-1946, while title Suit No. 73 of 1946, was on behalf of plaintiff No. 2 Jagarnath Prasad Sahu and was instituted on 15-8-1946, and as they arose out of the same transaction, they had been made analogous and were heard together. Subsequently, however, on 25-2-1948, after the close of the hearing but before the delivery of the judgment, an application was filed in Title Suit No. 72 of 1946 on behalf of plaintiff No. 2 Jagarnath Prasad Sahu praying therein that he may be allowed to be added as a co-plaintiff in that suit. That prayer was allowed with the result that thereafter title Suit No. 72 of 1946 came to be the common suit on behalf of both the plaintiffs; and in those circumstances the trial court thought and I think rightly that the other suit, namely, Title Suit No. 73 of 1946 filed by that plaintiff No. 2 Jagarnath Prasad Sahu became infructuous. Thus, the adjudication on the matter in issue between the parties was finally given only in T. S. 72 of 1946 and it is the decree passed in that suit which is now in appeal before us at the instance of the defendant 1st party.