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BAU AND OTHERS versus BADRI AND OTHERS

High Court of Judicature at Allahabad

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Bau And Others v. Badri And Others - SECOND APPEAL No. 1406 of 1980 [2006] RD-AH 20377 (1 December 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 30.

Second Appeal No. 1406 of 1980.

Bau and others                Vs.    Badri and others.

Hon. Sunil Ambwani, J.

Heard Sri Murlidhar assisted by Sri R.P. Singh for appellants, and Sri Vishnu Singh  holding brief of Sri R.N. Singh for respondents.

The second appeal arises out of O. S. No. 35 of 1978  for specific performance of contract dated 24.12.1976, entered into between the plaintiff and respondent no. 1, to transfer his 1/3rd share in the three plots for Rs. 2500/-, out of which Rs.2000/- were received in advance  money and to cancel the sale deed dated 9.12.1977 executed  by defendant no. 1 transferring the land to defendant nos.  2 to 4.

The suit was contested by the defendants on the ground that the defendant no. 1 did not execute any  agreement to sell the land to the plaintiff. in favour of the plaintiff.  The defendant no. 2 to 4 were bonafide purchasers for value  paid to defendant no. 1 on the execution of the sale deed dated 9.12.1977, without any notice of the alleged contract.   The plaintiffs were fully aware of the sale deed dated 9.12.1977, since the date it came into existence. The plaintiff  did raise any grievance nor pressed the defendant no. 1 for performance of the contract.  

The trial court decreed the suit on 27.4.1979 with the findings that the defendant no. 1 had entered into the agreement with the plaintiff and had received sale consideration of Rs.2,000/-. The deed of  agreement dated 24.12.1977 paper No. 8-A ( Ext2) was proved on record.  The defendant no. 2 to 4 were not bonafide purchasers for value without notice  of the earlier agreement.  

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In Civill Appeal No. 115 of 1979 it was contended that the plaintiff has failed to prove the agreement and that  defendant Nos. 2 to 4, were bonafide purchaser for value without notice. After re-appreciating the evidence, the appellate court held that the agreement was proved by independent witnesses. The payment of Rs. 2,000/- as earnest money was proved. On point no. 2 the appellate court found that whenever the defendant no. 1 came to village he used to stay with the plaintiff.  The plaintiff was co-tenure holder of the plot in dispute.   The defendant no. 1 did not have any house in village Khujrahwa and was living six miles away.  The plaintiff was in possession over the plot in dispute for more than 25 years. The defendant no. 1 in the end of the cross-examination kept quite when he was asked whether Bau the subsequent purchaser had enquired from him  about the  agreement in respect of the land in dispute. The appellate court found that no reliance could be placed on the testimony of  Bau the defendant no. 2, when he stated that he had made  inquiries about the land from  defendant no. 1.  The appeal was  dismissed on 29.2.1980 confirming the judgment of the trial court..

Sri Murlidhar, learned senior counsel appearing for the appellant has raised two questions for consideration of the Court:  He submits that:-

1. The evidence clearly suggests that the plaintiff- respondents had come to know of the sale deed dated 9.12.1977 on the date it was executed by defendant no. 1 in favour of defendant no. 2 to 4.  There was no reason for the plaintiff to have waited for almost seven months to file the  suit.

2. There can be no restriction on sale.  The fact that there was a ban on the registration of sale  and that the sale

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         deed was to be executed within three weeks of the lifting of the ban was a condition of the  contract which could   not be enforced  by the plaintiff.

        Both the contentions are inferences from the same facts .  The trial court as well as the appellate court discussed the evidence and has held that the plaintiff was a co-tenure holder of the plot in dispute with he defendant.  The defendant no. 1 living six miles away did not have any place to stay in vilalge  Khujrahwa.  The plaintiff  did not have come to know of the sale deed immediately  on its execution.   The parties could have agreed to wait for execution of sale deed until the restrictions placed by the State Government on registration of documents were lifted.   The defendant did not plead that there was no such restriction or that he had not agreed to get the sale deed executed within three weeks of lifting of the ban.  The condition was no invalid. A valid agreement is a contract.  The suit was filed within three years of the date of lifting the ban, after giving registered notice dated 17.7.1978.  The points as such do not raise any substantial questions of law to be considered in the Second Appeal.  Further I do not find that the ground nos. 3,4 & 6 are substantial questions of law .

The second appeal is dismissed with costs.

Dt. 1.12.2006.

BM/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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