SUBHASH AUDDY Vs. MUKESH AGARWAL

JUDGEMENT

(1.) Heard Mr. Prashant Pallava, the learned counsel appearing on behalf of the appellants.

(2.) This Second Appeal has been preferred against the judgment dtd. 15/4/2024 and decree dtd. 22/4/2024 passed in Civil Appeal No.17 of 2022 by learned District Judge-V, Dhanbad whereby he has been pleased to dismiss the appeal and affirmed the judgment and decree dtd. 5/4/2022 and 16/4/2022 passed in Title Suit No.5 of 2011 by learned Civil Judge (Senior Division) 2nd, Dhanbad.

(3.) The case of the appellants/ respondents is that the defendant is the owner of land measuring 28 decimals in plot no. 353 appertaining to Khata No. 17 of Mouza Rajganj @ Rajabhita, mouza no. 198 by virtue of inheritance and amicable partition amongst three brothers namely Bolai Auddy, Rameshwar @ Ram Auddy and Hublaf @ Habu Auddy all sons of Late Babulal Auddy. The defendant entered into an agreement to sale dtd. 27/6/2010 with the plaintiff for sale of 8.5 decimals out of 28 decimals of his share of land in plot no.353 appertaining to Khata no. 17 of Mouza Rajganj @ Rajabhita, Thana No. 198, P.S. Katras (Rajganj), Dist Dhanbad. The aforesaid 8.5 decimals of land and measures, 16 feet East-West and 230 feet North-South over which 16'x10' one shop room thatched with asbestos sheet on southern corner fully mentioned in the schedule of the agreement dt. 27/6/2010 was proposed to be sold by the defendant to the plaintiff for a total consideration of Rs.17.00 Lacs only and out of the total agreed consideration amount the defendant received a sum of Rs.15.00 lacs only were agreed to be paid by the plaintiff on the date of execution of registered sale deed within the stipulated period of 9 months from the date of the agreement. The plaintiff was put in possession of the shop room having asbestos roof thereon as a tenant for 09 (nine) months on rent of Rs.1000.00 per months and during that period the registered sale deed was agreed to be executed by the defendant in favour of the plaintiff on receiving the balance of consideration money of Rs.15.00 lacs. The plaintiff was and is always ready and willing to purchase the aforesaid property fully described in schedule by bearing the registration cost of the sale deed besides paying balance consideration of the contract amount. That the plaintiff started requesting the defendant to execute registered sale deed and receive balance of consideration money since July, 2010 but in spite of repeated requests of the plaintiff, the defendant always deferred the matter on some pretext or the other. The period of completion of the deal as stipulated in the contract dtd. 27/6/2010 was on any day within 09 months from the date of contract and as such the plaintiff insisted the defendant to execute the required registered Sale deed after receiving the balance consideration money from the month of July 2010 onwards but the defendant although assured but always deferred the matter. Seeing such attitude of the defendants, the plaintiff got an advocate's notice dtd. 19/11/2010 served. upon the defendants. The said notice was duly received by the defendant and the defendants got the said advocate's notice replied vide reply dt. 29/10/2010 refusing to execute registered Sale deed, falsely denying receipt of advance of consideration amount. The cause of action for the present suit has arisen on 27/6/2010 (when the defendant agreed to sale the suit property and received part consideration money) and on 29/11/2010 (when the defendant has refused to execute regd. Sale deed) and subsequently thereafter.