SARVA DEO SINGH Vs. RAMCHANDRA SINGH

JUDGEMENT

(1.) THIS second appeal filed by the defendant/appellant, is directed against the judgment dated 1.12.1990 and its corresponding decree dated 10.12.1990 passed by the 5th Additional Judicial Commissioner, Ranchi in Title Appeal No. 71/29 of 1987 -1990, whereby he allowed the appeal filed by the plaintiff/respondent by reversing the judgment dated 25.7.1987 and decree dated 5.8.1987 passed by the Sub -Judge, 7th, Ranchi in Title Suit No. 248/39 of 1984 -1987, dismissing the suit of the plaintiff. During the pendency of this appeal, the original appellant namely, Smt. Rima Devi having died, her legal heirs have been substituted. The suit as filed by the plaintiff was for specific performance of contract and for cancellation of the sale deed dated 11.1.1982 executed in favour of defendant No. 1.

(2.) FOR better appreciation of the dispute and the questions raised for determination, a brief statement of the facts of the case may be recorded. According to the case of the plaintiff, the property bearing M.S. Plot No. 1446 measuring 0.007 karis and another plot bearing M.S. Plot No. 1447 measuring 0.107 karis within ward No. II stood recorded in the name of Ram Kumar Mahto, father of Rajeshwar Mahao, Proforma defendant. The suit property comprises of land with khapparposh house measuring 2 katthas as described in the Schedule of the plaint, within the aforesaid plots of lands. On the plea of providing medical treatment to his ailing father, the proforma defendant went on borrowing money from the plaintiff from 20.7.1980 with an assurance that he would transfer his land by way of sale to the plaintiff. The father of the proforma defendant died on 16.8.1980 leaving behind Braj Kishore Mahto (Proforma defendant) and his elder brother Rajeshwar Mahto and on the plea of meeting the funeral expenses, the proforma defendant borrowed more money from the plaintiff. Ultimately, on 4.12.1981 the proforma defendant executed an Agreement for sale in favour of the plaintiff in respect of the suit lands claiming the same to be within his share of the entire property, for consideration of Rs. 6,000/ -. He acknowledged the receipt of a sum of Rs. 3,500/ -which he had earlier received from the plaintiff as earnest money. The plaintiff who was initially inducted as tenant within the suit premises, continued to remain in possession of the same even after the aforesaid date of Agreement as part performance of contract. The proforma defendant agreed to execute the Deed of transfer in favour of the plaintiff after receiving the sum of Rs. 2,500/ - being the balance of the consideration amount. However, despite repeated requests of the plaintiff and his willingness to pay the balance of the consideration amount, the proforma defendant did not execute the sale deed in respect of the property assured in the Agreement, in favour of the plaintiff. On the other hand, the proforma defendant and his brother executed a sale deed in favour of the defendant No. 1 on 11.1.1982 in respect of the entire; 10 katthas of the property including the portion which the proforma defendant had agreed to sell to the plaintiff. On the basis of the above stated pleadings, the plaintiff has prayed for a decree for specific performance of contract in terms of the Agreement entered into by and between him and proforma defendant and for cancellation of the sale deed dated 11.1.1982 executed by proforma defendant and his brother in favour of the defendant No. 1 declaring the same as void, illegal, inoperative and fraudulent.

(3.) IT may be mentioned here that in his written statement, the proforma defendant (respondent No. 2) had virtually supported the entire case of the defendant No.