KRISHNA KUMAR Vs. RAGHUBIR PRASAD YADAV

JUDGEMENT

(1.) THIS appeal under Clause 10 of the Letters Patent is directed against the judgment and decree dated 15.1.88 passed by a learned Single Judge of this Court in F.A. No. 38/78, whereby the appeal filed by the defendant -respondent has been allowed and judgment and decree dated 27.7.76 passed by the 3rd Additional Sub Judge, Dhanbad in Title Suit No. 39/76 has been set aside and consequently the suit of the plaintiff -appellant for specific performance of contract has been dismissed.

(2.) THE fact of the case lies in a narrow compass.

(3.) THE plaintiff 'scase is that the suit property originally belonged to the defendant no.1, who offered to sell the same and the plaintiff agreed to purchase the said property. Accordingly, ah agreement was entered into on 1.12.70 by and between the plaintiff and the defendant no.1 whereby the suit property was agreed to be sold at Rs. 11200/ - and a sum of Rs.1601/ - was paid by the plaintiff to the defendant as earnest money in terms of the agreement. The property was agreed to be sold within four months from the date of agreement and defendant no.1 further agreed to deliver possession of the land in question to the plaintiff. Plaintiff 'sfurther case was that in pursuance of the agreement when he went to the suit property to take possession it was found that the defendant no.2 -appellant was in occupation of the portion of the land as a tenant of defendant no.1. The plaintiff informed the defendant No.2 about the agreement dated 1.12.70 and requested him to pay monthly rent to him but the appellant though agreed to pay the rent to him, put up the matter on one pretext or the other. The plaintiff further alleged that though he has tendered the balance consideration of Rs. 9600/ - but the defendant no.1 on one pretext or other refused to receive the consideration amount and failed to execute the sale deed. The plaintiff thereafter sent advocate notice dated 6.7.71 asking defendant no.1 to execute the sale deed within a fortnight on receipt of the balance consideration money and a copy of the said notice was also sent to the defendant no.2, who was in occupation of the portion of the land as a tenant. The defendant no.1 received the said notice but defendant no.2 refused to accept the notice. Inspite of service of notice defendant no.1 failed to execute a registered sale deed The plaintiff 's further case was that he apprehended that the defendant no.1 might sell the suit property in favour of some persons and therefore he got notice of agreement published in the newspaper namely, &aposAwaj&apos dated 11.7.71. However, the plaintiff subsequently learnt that the defendant no.1 executed a sale deed on 29.1.73 in favour of the defendant no.2 for a consideration of Rs.2000/ - only. The plaintiff, therefore, alleged that the sale deed executed by the defendant no.1 in favour of the defendant no.2 is collusive and void and without payment of consideration solely for the purpose to defeat the existing right of the plaintiff under the agreement.