ANCHI Vs. MAIDA RAM

JUDGEMENT

(1.) JUDGEMENT :- This is a civil second appeal under Sec. 100, C.P.C. filed against the judgement and decree dated 19-1-1977 passed by the learned District Judge, Jhunjhunu in Civil Appeal No. 38/73 setting aside the judgement and decree dated 31-7-1973 in Civil Suit No. 112/70.

(2.) Briefly stated the facts of the appeal are that the plaintiff respondent filed a suit for specific performance and cancellation of gift deed and also for obtaining possession of the suit properties bearing Khasra No. 554, 557, 560 and 561 situated in village Kishorepura Tehsil Neem-ka-thana. The suit was originally filed against Govinda and appellant No. 4 Jhabar. Govinda however died during the pendency of the suit and appellants Nos. 1 to 3 were substituted as legal representatives of deceased Govinda.

(3.) The case of the plaintiff respondent was that an agreement to sell agricultural land measuring 7 bighas 18 biswas bearing the aforesaid Khasra Nos. in village Kishorepura along with Quwadi situated in the said agricultural land, was entered between him and the defendant No. 1 deceased Govinda on 7-5-1967. Deceased Govinda was the Khatedar of the aforesaid agricultural land. The plaintiff's case further was that as per the agreement, he paid Rs. 6500/- to defendant deceased Govinda as part payment of the price of the land and remaining consideration of Rs. 1000/- was to be paid in the month of 'Ashadh Samwat 2025' at the time of execution of the sale deed and its registration. It was further alleged in the plaint that the deceased defendant Govinda instead of executing the sale deed in favour of the plaintiff gifted the suit properties to the defendant No. 4 Jhabar (appellant No. 4 in this appeal), who is his daughter's son. According to the plaintiff defendant Govinda had no right to alienate the suit properties in view of the agreement executed between him and Govinda and in view of the part payment made by the plaintiff to deceased Govinda. He, therefore, prayed for decree for cancellation of gift deed, for specific performances of the contract entered into on 7-5-1967 and also for possession of the suit properties. In the alternative he prayed for a decree of Rs. 6500/- which were paid by him to the defendant Govinda, together with interest at the rate of 12% per annum. The defendants contested the suit. Defendant Govinda denied the alleged agreement and contended that he had every right to alienate the property through the gift deed. Some other legal objections regarding insufficiency of the court fee and jurisdiction were also taken in the written statement. Learned trial court framed 10 issues arising out of the pleadings and after recording evidence of both the parties, dismissed the plaintiff's suit vide its judgement dated 31-7-1973 holding that the defendants never executed the agreement (Ex. 1) on 7-5-1967 nor received Rs. 6500/- as part of consideration. The plaintiff respondent filed an appeal in the court of learned District Judge, Jhunjhunu, who reversed the finding on issue No. 1 regarding execution of agreement and receipt of Rs. 6500/- from the plaintiff by deceased Govinda, holding that the execution of the agreement (Ex. 1) and receipt of Rs. 6500/- to the defendant Govinda by the plaintiff were proved on the evidence on record. Learned District Judge further did not think it proper to pass a decree for specific performance in favour of the plaintiff and decree for Rs. 6500/- was passed in favour of the plaintiff.