GOURI SHANKAR PRASAD Vs. BRAHMANAND SINGH

JUDGEMENT

(1.) This second appeal is directed against the judgment dated 9-8-2000 and the decree signed on 21-8-2000 passed by the District Judge, Palamau at Daltonganj in Title Appeal No.10 of 1997 by which the learned District Judge, Palamau allowed the appeal and set aside the judgment and decree dated 27-1-1997 passed by the Additional Munsif, Garhwa, in Title Suit No.17/92- 49/93.

(2.) The case of the plaintiffs-appellants in brief as stated is that the plaintiffs were in need of money , hence, offered to mortgage their land detailed in Schedule 'D' of the plaint with condition to repurchase the same on consideration of Rs.36,600/-. The defendant-respondent, namely, Brahma-nand Singh and one Dasrath Prasad Keshri became ready to purchase jointly the land of Schedule 'D' and accordingly, the plaintiffs executed a registered deed of sale dated 5-2-1986. The respondent and Dasrtath Prasad Keshri on the same day also executed a registered deed of agreement and agreed to recovery the purchased land to the plaintiff on payment of consideration money to them. It has been alleged that though the deed of sale was executed by the plaintiff-appellants in favour of the respondent and Dasrath Prasad Keshri and they always remained in cultivating possession of the lands, as described in Schedule 'D' of the plaint. It is also alleged that the plaintiffs-appellants were in need of Rs.15,000/-. The respondent and Dasrath Prasad Keshri became ready to keep the land in mortgage, but only after calculating the interest thereupon at the rate of 4 per cent for three years and accordingly, the price was fixed at Rs.36,600/-. It is further alleged that the plaintiffs appellants in the first week of January, 1989, repaid Rs.5,500/- to the respondent in presence of the witnesses upon which, he promised to reconvey the suit land, but even thereafter he did not reconvey the land and extended time for execution of the deed of reconveyance. Ultimately on 10-4-1992, Dasrath Prasad Keshri received consideration money of his share i.e. Rs.18,300 and executed the deed of sale reconveying half of the land of Schedule 'D' in favour of the plaintiffs. It is also claimed that the plaintiffs also requested the respondent to receive his consideration money and to reconvey the Schedule 'D' land of his share, but he delayed the matter, whereupon the plaintiffs sent registered legal notice to defendant No.1 but even then the respondent failed to perform his part of contract and, hence, the plaintiff filed the suit.

(3.) The respondent contested the suit and filed written statement alleging therein that the deed of agreement contained a specific terms that if the plaintiffs paid back the consideration amount at any point of time within three years then the respondent and Dasrath Prasad Keshri would recovery the land of Schedule 'D'. It is also claimed that the plaintiffs remained in possession of the land after execution of the sale deed. The plaintiffs-appellants had never been willing to perform their part of contract nor they had paid money within the stipulated period of three years as contained in the agreement. According to him, the plaintiffs-appellants never paid any money to this defendant nor they had requested for extention of time nor the defendant ever orally agreed to extend the time. He has also denied that on 10-4-1992 the plaintiffs tendered any consideration money nor there had been any such occasion till date and, as such, the plaintiffs have lost their right of recon-veyance.