DEOKI NANDAN KEJRIWAL Vs. GAYA PRASAD GOND

JUDGEMENT

(1.) THIS Second Appeal, by the defendants/appellants/appellants has been preferred against the judgment and decree passed in Title Appeal No. 3 of 1999, whereby learned lower appellate court has dismissed the appellants' appeal affirming and upholding the judgment and decree of learned trial court passed in Title Suit No. 23 of 1995.

(2.) THE plaintiffs/respondents had filed the Suit praying a decree for specific performance of contract and confirmation of possession of the suit land. The plaintiffs' case was that the defendants' father late Satyanarain Kejriwal, by virtue of an agreement dated -11.09.1980, had contracted to sell the suit property to the plaintiff for a total consideration of Rs. 36,000/ - and out of which had taken Rs. 17,050/ - by way of advance. The balance amount was payable at the time of the execution and registration of the sale deed. The plaintiffs in part performance of the said contract, were also put in possession of the suit property and they had been in continuous possession of the same since then. The plaintiffs requested several times to execute and register the sale deed but the same was not heeded upon. The plaintiffs then sent a legal notice but the defendants' father even thereafter did not perform his part of the contract. The plaintiff then wrote a letter to the then Chief Minister of Bihar and on his direction, the Deputy Commissioner, Sahebganj initiated a proceeding being K.M.P. Case No. 9 of 1984 -85. By order dated -08.04.1999, the Deputy Commissioner directed the defendants' father to adhere to the terms of the contract and to execute the sale deed. However, a proceeding under Section 4(H) of the Bihar Land Reforms Act was initiated being Case No. 4 (H) 1 of 1985 -86, in which both the parties of the case i.e. the plaintiff and the father of the defendant, appeared and in the said proceedings, the defendants' father admitted to have accepted a further advance of Rs. 1,000/ - on 06.12.1989 and undertook to execute the sale deed on receipt of the balance consideration amount. On 03.11.1993, the defendant's father Satyanarain Kejriwal died. The suit was filed against the defendants, who are the heirs and the legal representatives of said Satyanarain Kejriwal.

(3.) THE suit was mainly contested on the ground that there was only proposal to sell and the said proposal was cancelled for non -payment of the balance amount within four months and that the money given in advance was forfeited. On the basis of the said pleadings of the parties, learned trial court framed several issues. Both the parties led oral as well as documentary evidences. Learned trial court on thorough appraisal of the evidences and the materials on record found, inter alia, that there was agreement to sell between the parties which is still subsisting and the same is not cancelled and the sum of Rs. 17050.00 given to the defendants has not been forfeited. The trial court further held that the suit is not barred by limitation. Other issues were also decided in favour of the plaintiff and the suit was decreed. The defendants then filed a regular appeal before the learned District Judge, Sahebganj, which was ultimately heard and decided by the Additional District Judge, First, Sahebganj. In view of the grounds taken in appeal, learned lower appellate court himself independently scrutinized the evidences and the materials available on record and after thorough discussion and consideration upheld the findings recorded by learned trial court, holding that the agreement for sale was not cancelled and the amount given in advance was not forfeited. Learned lower appellate court while deciding Issue No. 7, distinctly on appraisal of evidences and materials on records has held that the defendants were in possession of the suit property. The lower appellate court, however, decided the remaining issues in favour of the plaintiffs/respondents, holding, inter alia, that the suit is not barred by limitation and though the plaintiffs, being the members of the Scheduled Tribe, are exempted from paying the court fee. They had not obtained certificate to that regard from the Legal Aid Committee, which was necessary for passing order for exemption of court fee. Learned lower appellate court though dismissed the appeal, directed the plaintiffs to pay the requisite court fee of Rs. 2998.15 and the same was made condition for operation of the judgment and decree.