SHEIKH FARJAN MIAN Vs. TEJU SAHU

JUDGEMENT

(1.) This Second Appeal under Section 100 of the Code of Civil Procedure has been filed by the plaintiff against the judgment and decree dated 21 A. 1988 passed by the 1st Additional District Judge, Palamau in Title Appeal No. 3 of 1982 reversing the judgment and decree dated 21.12.1981 passed by Munsif, Garhwa in Title Suit No. 8 of 1974. By the impugned judgment and decree the learned lower Appellate Court allowed the appeal filed by the defendant and set aside the judgment and decree passed by the Trial Court and held that the suit for specific performance of contract cannot be decreed.

(2.) The facts of the case are not much in dispute. The plaintiff-appellant filed the aforesaid suit for specific performance of contract for sale on the basis of an agreement date executed by the defendant in respect of 7 and half decimals of plot No. 115 under Khata No. 43 of Village Dipwa together with a house standing thereon. The plaintiff being in urgent need of money approached the defendant and agreed to sell the property with condition to purchase the same by virtue of agreement. The plaintiff accordingly executed the sate deed in respect of the suit property for a consideration of Rs. 5,000/- on 13.4.1974, On the same day a registered agreement was entered into by and between the plaintiff and the defendant whereby the defendant agreed to reconvey the suit property if the plaintiff offered the entire consideration money to him within 13.4.1974. The plaintiffs case was that he arranged money and approached the defendant several times and offered the money for reconveyance of the suit property. The plaintiff on 10.4.1974 offered the consideration money in presence of two witnesses and asked him to execute the sale deed but the defendant put off the matter for 12.4.1974 and agreed to make himself available on that day at the Registration Office. On 12.4.1974 the plaintiff searched for the defendant in the Court compound and also in the Registration Office at Gurhwa. He also waited till the Court hour but the defendant did not appear. It was alleged that the defendant again promised to execute the sate deed on 15.4.1974 but the Court was closed from 12.4.1974 to 15.4.1974. The plaintiff further pleaded that he sent lawyer's notice dated 13.4.1974 calling upon the defendant to receive back the consideration money and to reconvey the suit land before 16.4.1974 but the defendant refused to accept the money and register a sale deed. Hence the plaintiff instituted a suit on 16.4.1974 and also deposited the consideration amount in the treasury on the same day. The suit was contested by the defendant respondent by filing written statement in which the execution of sale deed and the agreement was not denied and disputed but it was specifically pleaded that the plaintiff never offered the consideration amount on any date prior to 13.4.1974 and all allegations of tendering the consideration amount are false and fabricated.

(3.) The Trial Court after hearing the parties and after considering the evidence decreed the suit holding that there was valid agreement and the plaintiff was always ready and willing to perform his part of the contract. The defendant-respondent preferred appeal against the judgment and decree of the Trial Court. The lower Appellate Court by the impugned judgment and decree allowed the appeal and set aside the judgment and decree of the Trial Court. The learned lower Appellate Court came to the conclusion that the plaintiff/appellant failed to establish that he was always ready and willing to perform his part of the contract and as a matter of fact the plaintiff was not capable of paying the consideration amount till 13.4.1974. On the basis of this finding the Appellate Court held that the plaintiff is not entitled to a decree for specific performance. Hence this appeal by the plain tiff/appellant.