Jogendra Ram & Anr vs Phullan Mila (D) By Lrs. & Ors

3. The suit is preferred by the appellant (plaintiff) for specific performance and declaration against respondent No.5 (defendant-first party) and respondent Nos.1 to 4 (defendants-second party).

4. The case of the plaintiff was that on 20th January, 1982 the defendant-first party sold 1 katha 6 dhurs of land in Plot No.29 of village Motihari to one Mahender Ram by registered sale deed. Subsequently, on 28th January, 1984 the defendant-first party entered into an agreement (Mahadanama) with the plaintiff for sale of rest of the land admeasuring an area of 5 kathas 6 dhurs of Plot No.29 of village Motihari as fully described in Schedule I of the plaint for which total consideration amount was fixed at Rs.3,000/- and an earnest money of Rs.1,500/- was paid by the plaintiff to the defendant-first party. The defendant-first party agreed to execute the sale deed by 15th March, 1984 after receiving the rest of the consideration amount. The plaintiff was put in possession of the suit land. The plaintiff was always requesting the defendant-first party to accept rest of the consideration money and execute the sale deed but on one pretext or the other she avoided execution of the sale deed. A legal notice was issued by the plaintiff on 5th March, 1984 to defendant-first party asking her to execute the sale deed. Pursuant to which, defendant-first party by letter dated 13th March, 1984 intimated that defendants-second party had forcefully got a sale deed executed in their favour on 22nd February, 1984.

6. The defendants filed their separate written statement. Defendant-first party fully supported the case of the plaintiff and she admitted that she had executed the agreement for sale prior to execution of the sale deed in favour of defendants- second party. The defendants-second party on false pretext had got executed the sale deed registered in their favour by putting undue pressure and without payment of consideration money. She challenged the maintainability of the suit against the defendants-second party on the ground that she never performed her part of the agreement and she was ready and willing to execute the sale deed in favour of the plaintiff. The defendants-second party, the main contesting party opposed the suit on the following grounds:

7. After recording the oral and documentary evidence supplied by the parties, the learned trial court came to the conclusion that the agreement between the plaintiff and the defendant-first party is genuine, legal, valid and for consideration. The defendants-second party failed to prove that the agreement between the defendant-first party and the plaintiff was antedated. The defendant-second party had prior knowledge of the agreement dated 28th January, 1984 and plaintiff was in possession of the suit premises. The plaintiff could not prove that the sale deed executed by the defendant-first party in favour of defendants-second party was obtained fraudulently but the trial court held that the sale deed was executed without paying any consideration amount. The trial court decreed the suit for specific performance ex parte against the defendant-first party and on contest against the defendants-second party.

14. In the result, the appeal is allowed. The impugned judgment dated 8th August, 2006 passed by the High Court is set aside. The judgment of the trial court as approved by the first appellate court is restored. The suit is decreed accordingly. But in the facts and circumstances, there shall be no order as to costs.