BISHWANATH MAHTO Vs. JANKI DEVI

JUDGEMENT

(1.) The plaintiff filed a suit for specific performance of a contract of sale alleging that the defendants agreed orally on 28-6-1959 to execute a sale deed in his favour transferring the suit land for a sum of Rs. 7,200/-and that a sum of Rs. 200/- was paid by the plaintiff to the defendants. The parties agreed that the remaining amount of Rs. 7,000/- would be paid at the time of the execution of the sale deed. The plaintiff repeatedly requested the defendants to execute the documents but they put off the matter. A notice was ultimately sent formally requesting the defendant in that regard and a copy thereof has been admitted in evidence as Ext. 1. The plaintiff received a reply from the defendants through a lawyer which is Ext. 1/a denying the allegation made in Ext. 1 and asserting that the defendants were ready to perform their part of the contract and it was the plaintiff who was the defaulter. The plaintiff's statement about payment of a sum of Rs. 200/- to the defendants was mechanically denied in Ext. 1/a. The plaintiff thereafter filed the suit out of which this second appeal arises.

(2.) There were originally two defendants : Smt. Nageshwari Kuer and Smt. Janki Devi, the widow and daughter of late Shri Lakshmi Prasad. The suit land admittedly belonged to them. During the pendency of the case before the lower appellate court, Smt. Nageshwari Kuer died leaving behind her daughter Smt. Janki Devi, the present respondent, as her sole heir and legal representative. The suit was contested in the trial court jointly by the two defendants. They pleaded that the consideration for the sale deed was fixed at Rs. 17,200/- and it was the plaintiff who was avoiding to get the sale deed executed. Certain other pleas were also raised in the written statement and it does not appear essential to state them in view of the scope of the second appeal excepting one matter. The defendants denied to have received the sum of Rs. 200/- alleged by the plaintiff to have paid.

(3.) The trial court held that the consideration of the sale-deed was fixed at Rs. 7,200/- only, but the case of the plaintiff about the payment of a sum of Rs. 200/- out of it was incorrect. The court also, rejected the evidence led on behalf of the plaintiff for proving that a sum of Rs. 2,400/- payable to a mortgagee of the land was included in the price of Rs. 7,200/-. The court rejected the other pleas raised on 'behalf of the defence and decreed the suit holding that the plaintiff was entitled to get a sale deed executed in respect of the suit land by the defendants on payment of Rs. 7,200/- in cash, besides Rs. 2,400/- payable by the plaintiff to. the prior mortgagee. Necessary directions were given in this regard.