SHINGHAL, J. -
(1.)This appeal of the plaintiff arises from the judgment and decree of Senior Civil Judge, Udaipur, dated March 24, 1961, by which his suit for specific performance of the contract for sale has been dismissed.
(2.)The facts of the case are quite simple. Ram Singh, the defendant, purchased plot Nos. 54. A and 55 A measuring 7283 and 8497 square yards, respectively, from the state government, in Udaipur, under 'pattas" Exs. A. 1 and A. 2. He paid for them at the rate of Rs. 1/- per square yard. "Patta" Ex. A. 1 was obtained by the defendant on July 9, 1949 "Patta" Ex. A. 2 on August 23, 1952. The defendant did not, however, make any construction on the plots beyond an constructing some compound wall. Thereafter, there was an agreement between the parties, at Bhilwara, on July 30, 1960. According to the plaintiff, that agreement was a completed agreement for the sale of the two plots to him at the rate of Rs. 1/. per square yard, and no more. Thus the plaintiff took the plea that he was not liable to pay the amount spent on the construction of the compound wall because the defendant had agreed not to charge for it. The plaintiff deposited Rs 1000/- in defendant Ram Singh's account with the Punjab National Bank on August 23, 1960 and, soon after, he wrote a letter (Ex. 1) to the defendant on August 26, 1960. The genuineness of that letter has been admitted by the defendant and as it is the first communication between the parties, it is of some importance. In that letter, the plaintiff stated clearly that in view of the relations between the parties, the defendant had agreed to disposed of the plots at the price actually paid by him to the Mewar Government and that he had agreed that he would not charge for the boundary wall which was already demolished by heavy rains. Then the plaintiff stated that, because of that agreement between the parties, he had deposited Rs. 1000/- in the defendant's account with the Punjab National Bank and that he would deposit more money as soon as he heard from him. In that letter the plaintiff, by way of a re-assurance, informed the defendant that he had raised the necessary funds for the payment of the full price by selling his other property and the property of his wife, and that he was in a position to pay the remaining price at the command of the defendant. The defendant sent reply Ex. 10 on August 30, 1960 confirming that he was charging Rs. 1/- per yard for the plots because that was the price he had paid, and he further stated, with regard to the wall, that he would not charge for it as promised earlier. So far as the price was concerned, he expressed his thanks for the "advance" deposited by the defendant and asked him to intimate the date by which he could deposit the balance. The genuineness of this letter is again not in dispute. It is also not now in dispute that, as was intimated by the plaintiff in his subsequent letter (Ex. 3) dated September 9, 1960, the plaintiff informed the defendant that he would deposit more money from time to time and that whatever remained by way of a balance, would be paid to the defendant at the time of the registration. In that letter also, the plaintiff reiterated, while expressing his, thanks to the defendant, that the defendant had agreed to charge the actual price of the land paid by him at the time of the initial purchase. The defendant sent a reply almost after a month on October 11, 1960 and that letter is Ex. 11. In it he stated that he hoped to reach Udaipur by November 15; and asked the plaintiff to get the money deposited in the Punjab National Bank so that on his arrival the sale-deed might be registered. The plaintiff thereupon sent a letter Ex. 8 on October 25, 1960 intimating that he had deposited Rs. 12,000/- in the defendant's account and stating that he would pay the rest of the money at the time of registration. No reply was received to that communication, even though the plaintiff had taken care to follow it up by a telegram of the same date. It so happened however that, according to the plaintiff, he learnt from the defendant's "Kamdar" that negotiations were being made for the sale of the plots to some one else. The plaintiff therefore felt aggrieved and instituted the present suit for specific performance of the contract for the sale of the two plots to him on November 7, 1960.
(3.)The facts set out above have not been disputed before us. The defendant, however, took the plea that he had made it quite clear to the plaintiff that the entire sale price was to be deposited in his account with the Punjab National Bank, under intimation to him, and that as this was not done, the plaintiff was not entitled to succeed. The defendant also pleaded that it was agreed between the parties that he would be entitled to recover the price of the wall constructed by him. It was also pleaded that, under the terms of the "pattas" referred to above, there was a condition in clause No. 4 that the plots would not be sold without building the houses thereon, and it was not therefore possible for the defendant to make the sale in favour of the plaintiff. These three defences were the subject-matter of separate issues. The burden of proving them was placed on the defendant and the trial court decided them in his favour and dismissed the suit as aforesaid. It is in these facts and circumstances that the present appeal has arisen.