RAJENDRA PRASAD SAH Vs. UMA SHANKAR SAH

JUDGEMENT

(1.) This Second Appeal under Section 100 of the Code of Civil Procedure is preferred by the appellant challenging the judgment and decree dated 17.11.2014 (decree sealed and signed on 25.11.2014) passed by District Judge III, Dumka in Title Appeal No.20 of 2010 by which the said title appeal was dismissed and the judgment and decree dated 22.04.2010 (decree signed on 05.05.2010) passed by the Sub Judge II, Dumka in Title Suit No.33 of 2002, by which the suit was decreed, has been confirmed.

(2.) Defendant, in the title suit Title Suit No.33 of 2002, is the appellant before the First Appellate Court and before this Court. The plaintiff filed the said suit for a decree of declaration that the plaintiffs are entitled to get sale deed executed and registered by the defendants with respect to Schedule 'A' properties after receiving the balance consideration money of Rs.43,500/- from the plaintiffs in terms of the agreement for sale dated 13.03.2001. They have also prayed for delivery of possession of Schedule 'A' property. Their case is that the Schedule 'A' property was purchased by a registered deed of sale by one Sheetal Sah. The land involved was four kathas of land and rest four kathas was purchased by Baidyanath and Surya Narayan. After the death of Sheetal Sah, the land was transferred to Ramlal Sah by the wife of Sheetal Sah by virtue of gift deed, who sold two kathas out of four kathas of land to one Kailash Prasad Sah in the year 1993. Said Kailash Prasad Sah sold the same land with a tiled house thereon to the plaintiffs by a registered deed No.3079 dated 10.11.1986. It is the case of the plaintiffs that the other portion was in possession of the co-purchaser Baidyanath Sah. After his death, the same came in possession of his son Binod Sah and mother Kamli Sahuain, who transferred three dhurs of land to Meena Devi (daughter of Baidyanath Sah) by gift deed in 1988. There was some difference between the defendant and their co-sharer, namely, Binod Prasad Sah, who was the legal representative of Baidyanath Sah with regard to possession of the northern side of the land, which was jointly purchased by Sheetal Sah (son of late Bishun Dayal Sah), Baidyanath Sah and Suryanarayan Sah (both sons of Basudeo Sah). Thereafter, due to intervention of punches, the dispute was resolved and the property was partitioned. The partition was incorporated into a family settlement by documentation on 11.04.1993. In the said family settlement, the house was divided in two parts. One half allotted to Binod Sah, which included three dhurs of land gifted to Meena Devi and the other half to Rajendra Prasad Sah. A partition wall was also erected. Rajendra Prasad Sah and his mother occupied their portion and became exclusive owner of the suit land, which is described in Schedule 'A' and subject matter of the title suit. It is the case of the plaintiff that defendants wanted to sell their property alongwith a house, for which a sum of Rs.81,000/- was paid as advance on different dates, out of settled price of Rs.1,25,000/- and the defendants executed an agreement for sale on 13.03.2001, fixing a date of executing the sale deed. The date was extended from time to time. The defendants avoided and did not execute the sale deed. The plaintiffs purchased requisite stamp paper and also got the deed drafted and were ready to pay the balance amount of Rs.43,500/- . A notice was also sent to the plaintiffs. The plaintiffs came to know that Binod Sah filed a title suit being Title Suit No.8 of 2001 in the Court of Sub Judge I, Dumka against the defendant claiming preferential rights over Schedule 'A' of the suit property. Plaintiffs tried to intervene in the said suit, but, their intervention application was dismissed. Said Binod Sah, thereafter, hurriedly compromised the suit accepting the preferential claim of Binod Sah. Thus, aggrieved, the plaintiffs filed the present suit for specific performance of the contract.

(3.) The defendants appeared and admitted that the suit property was purchased by Surya Narayan Sah and Basudeo Sah and the property is still joint and occupied by the legal heirs of Baidyanath Sah and Surya Narayan Sah, as per their convenience. They denied existence of any sale. They denied the factum of partition. They stated that there was business relationship between the plaintiffs and the defendants for which money was paid and taking advantage, the same was converted as advance in lieu of proposed sale.