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2001 DIGILAW 709 (JHR)

Bharat Singh v. Aklu Hazam

2001-10-03

GURUSHARAN SHARMA

body2001
JUDGMENT Gurusharan Sharma, J. 1. Admittedly, Kunti Domin owned and possessed a house at Katras Bazar. District Dhanbad, one room (measuring 12" x 13") whereof is subject matter of the present appeal. She died leaving behind two sons, namely, Chaitu Dome and Khetu Dome. 2. On 16.3.1964, the plaintiff was inducted as tenant in the said room on monthly rental of Rs. 12/-. 3. On 26.8.1971, defendant No, 1 (Chailu Dome) executed a registered usufructuary mortgage deed lor the said room for Rs. 700/- in favour of the plaintiff. 4. Plaintiffs case is that defendant No. 1 agreed to sell the said room to him for Rs. 2100/- and executed an agreement for the same on 15.10.1973. Rupees 700/- was already with him for which he had executed usufructuary mortgage deed and further on 15.10.1973 a sum of Rs. 1000/- was paid to him. According to the terms of the said agreement, on receiving the balance consideration amount of Rs. 400/- from the plaintiff, defendant No. 1 was to execute the sale deed within three months. 5. On the failure of defendant No. 1 to execute the deed, inspite of repeated requests by the plaintiff, a notice dated 29.11.1973 was sent to him through a lawyer, which was replied by him on 7.12.1973. 6. Plaintiff also received lawyers notice dated 8.12.1983 on behalf of defendant No. 2 informing him that he had already purchased the room in question from defendant No. 1 and his brother Khctu Dome by registered sale deed dated 7.11.1973. 7. Plaintiff thereafter filed Title Suit No. 117 of 1973 for specific performance of agreement for sale dated 15.10.1973. which was dismissed on 16.11.1976. Thereafter he filed Title Appeal No. 215 of 1976, which has been allowed by impugned judgment and decree dated 23.7.1985. Trial Courts decree was set aside and the suit was decreed. 8. Plaintiff claimed himself to be in occupation of the suit room from 15.10.1973 onwards in part performance of the agreement tor sale and was always ready and willing to perform his part of the agreement. 9. Defendant No. 1 neither appeared not filed written statement nor contested the suit. Defendant No. 2 contested the suit. According to him. the usufructuary mortgage dated 26.8.1971 was already re-deemed by defendant No. 1. 9. Defendant No. 1 neither appeared not filed written statement nor contested the suit. Defendant No. 2 contested the suit. According to him. the usufructuary mortgage dated 26.8.1971 was already re-deemed by defendant No. 1. His further case was that defendant No. 1 was not the sole owner of the suit premises and his co-sharer and full-brother Khetu Dome did not join the alleged agreement for sale and as such it was invalid. 10. The Trial Court held that plaintiff failed to prove that defendant No. 1 had executed the alleged agreement for sale. Defendant No. 2 had no knowledge about the alleged agreement for sale and he purchased the suit premises from both Chaitu and Khetu for consideration. 11. On the other hand, the first appellate court held that the agreement for sale (Exhibit 5) was a genuine paper and it was executed by defendant No. 1 with respect to the suit premises, which exclusively belonged to him. It was also held that prior to execution of the sale deed dated 7.11.1973 (Exhibit A) in favour of defendant No. 2, Chaitu had already executed an agreement for sale in favour of plaintiff for Rs. 2100/- and had accepted Rs. 1000/- at that time and Rs. 700/- was adjusted towards the mortgage dues and Rs. 400/- was to be paid at the time of execution of the sale deed. Defendant No. 2 had knowledge about the agreement prior to execution of the sale deed in his favour. The suit was accordingly decreed. 12. This Second Appeal was admitted on the following substantial question of law:--"When admittedly Ext. A the sale deed, standing in favour of the appellant was executed by Chaitu defendant No. 1 and his brother Khetu claiming the property to be their joint property, whether in this suit in absence of Khetu any finding could have been recorded that the property exclusively belonged to Chaitu. who had entered an agreement to transfer the property in favour of respondent No. 1 by Ext. 57." 13. In Kirayanama, Ext. 7, Mortgage deed, Ext. 4 and Agreement for sale. Ext. 5. Chaitu asserted that suit premises was exclusively his property inherited from mother. Kunti, whereas in sale deed dated 7.11.1972. Ext. A executed by plaintiff with his brother. who had entered an agreement to transfer the property in favour of respondent No. 1 by Ext. 57." 13. In Kirayanama, Ext. 7, Mortgage deed, Ext. 4 and Agreement for sale. Ext. 5. Chaitu asserted that suit premises was exclusively his property inherited from mother. Kunti, whereas in sale deed dated 7.11.1972. Ext. A executed by plaintiff with his brother. Khedu Mahto it was received that suit property belonged to their mother and after her death, both of them inherited the same from her. 14. In such circumstance, in my opinion. the court of appeal below committed a mistake, specially in absence of Khetu Mahto in recording a finding that premises in question exclusively belonged to Chaitu. defendant No. 1. 15. Once it was established that the suit premises was. pint between two brothers. Chaitu and Khetu. then Chaitu alone had no right to execute agreement for sale (Ext. 5) in favour of plaintiff. The said agreement for sale was invalid and! was not enforceable in law. 16. I, therefore, set aside impugned judgment and decree, passed by the Court of appeal below and affirm the judgment and decree passed by the trial Court. 17. In the result, this appeal is allowed. but without costs. Lower Court records may be sent down. 18. Appeal allowed.