BANWARI LAL AGARWALLA Vs. RAM SWAROOP AGARWALLA

JUDGEMENT

(1.) Since the fate of these two cases depends upon the adjudication of main issue "whether the agreement to sell is valid and enforciable in law," the appeal and the revision have been heard together and are being disposed of by this common judgment.

(2.) The plaintiff appellant has filed First Appeal No. 149/95(R) against the judgment and decree dated 6-7-1995 passed by Sub-judge Ist. Bokaro at Chas dismissing title suit No. 53/91 filed by the appellant for a decree for specific Performance of Contract. The appellant filed Civil Revision No. 293/95 under Section 14(B) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 against the judgment and decree passed by Sub-judge Ist. Bokaro at Chas decreeing title suit (E 21/90) for eviction of the defendant appellant from the shop premises.

(3.) The case of the plaintiff appellant in the aforesaid suit for Specific Performance of Contract is that the defendant respondent is the owner and landlord in respect of all that piece and portion of land measuring 11 decimal along with building and structure standing on plot No. 6882 of khata No. 566 situated at village Chas, P.S. Chas district Bokaro. The appellant was inducted as a tenant with respect to one shop room measuring an area 408 sq. ft. i.e. 24' north and south in length and 17' east and west in width facing the main road and the ground floor of the building where the appellant is doing business of cycle/cycle rickshaw and electrical goods. The plaintiff's case is that the defendant entered into an agreement for sale of the shop room excluding an area of 6' wide space on the eastern side and extending an area of 3' on the southern side in length, for a consideration of Rs. 1,00000/- and an agreement was executed on 2-5-1990 and the defendant received a sum of Rs. 15,000/- as an earnest money. The plaintiff alleged that as per the agreement there was clear understanding between the plaintiff and the defendant that the plaintiff appellant would continue in possession of the shop premises in part performance of the agreement and the defendant was required to erect a wall towards eastern inside the shop premises of the plaintiff in such a way that the area of the shop premises to be conveyed to the plaintiff towards northern and southern shall be 11' in width and western side shall be 27' in length excluding a wall and then to execute a registered sale deed on or before the 30th September, 1990 on receipt of the balance consideration money from the plaintiff. Plaintiff further case is that despite repeated request by the plaintiff the defendant did not care to construct wall and to execute sale deed as per agreement. Accordingly, several notices were sent to the defendant under certificate of posting celling upon him to perform his contractual obligations regarding erection of wall etc. and registration of deed of sale in favour of the plaintiff but nothing was done. The plaintiff was always ready and willing to perform his part of the agreement and also to pay the balance consideration money but the defendant with mala fide intention has failed and neglected to perform his part of the agreement. Instead of performing his part of contract, the defendant with mala fide intention gave a notice through his advocate dated 29-10-1990 alleging therein that the plaintiff pressurises the defendant to sell the shop premises and further the plaintiff failed and neglected to pay the balance consideration by 30th September, 1990 and as such the agreement stand cancelled and the advance money stand forfeited. The defendant also filed eviction title suit No. 21/90 for eviction of the plaintiff appellant.