KUSUM BHUWANIA Vs. VIJENDRA KUMAR GOEL

JUDGEMENT

(1.) PLAINTIFF / appellant has filed the instant appeal against the judgment dated 17.1.1998 and its corresponding Decree dated 4.2.1998 passed in Title Suit No. 19 of 1990 by the Sub Judge -I, Koderma, whereby the suit, as filed by the plaintiff, was dismissed on contest.

(2.) THE suit as filed by the plaintiff was for a declaration that the contract dated 25.3.1985 for the sale of Schedule 'A' land mentioned in the plaint, to the plaintiff by the defendant, was still subsisting and the defendant was bound by the said contract to execute and register the sale deed in respect of the suit land in favour of the plaintiff. A further prayer was made for restraining the defendant from transferring the suit land to any of the person except the plaintiff by either sale or mortgage or any other. The case of the plaintiff is that on 25.3.1985 the defendant had entered into a written agreement with the plaintiff agreeing to sell 47 decimals of land described in the Schedule 'A' of the plaint for a total consideration of Rs. 3,01,000.00 and the defendant had received a sum of Rs. 501.00 as earnest money from the plaintiff on the date of the agreement and on the same date, had also delivered possession of the suit land to the plaintiff. The defendant had promised to execute and register the sale deed within three months from the date of the agreement i.e. 25.3.1985, but despite repeated demands made by the plaintiff, expressing her willingness to pay the balance of the consideration amount, the defendant had failed and neglected to execute and register the sale deed on one pretext or another. The further case of the plaintiff is that though, at the time of executing the aforesaid agreement, the defendant had represented that the total area of land was 47 decimals, but on actual measurement, it was found only 36 decimals. The plaintiff thereafter served legal notice upon the defendant on 8.5.1985 stating the actual area of the suit land which is situated within the brick built boundary wall and expressing her willingness and readiness to pay the balance of the consideration amount proportionate to the purported actual area and demanding execution of the sale deed in her favour. Demand legal notices were allegedly issued by the plaintiff to the defendant on several dates, the last being on 19.6.1990. The plaintiffs husband approached the defendant on 18.10.1990 with a request to receive the balance consideration amount for the existing area of the land and to execute and register the sale deed, but the defendant had refused to accede to the request claiming that the agreement was not subsisting and binding upon him.

(3.) THUS , according to the pleadings of the defendant, the deed of agreement was signed by him on 25.3.1985. Defendant had admitted that he had agreed to sell the suit land measuring 47 decimal to the plaintiff and to execute the sale deed within three months from the date of the agreement on the condition that the entire consideration amount is paid to him within the stipulated period.