- (1.) THIS is a second appeal against the judgment and decree dated 15-9-1983 in Civil Appeal No. 158 of 1975 by Sri, R. C. Gupta, Special/additional District Judge, Jaunpur by virtue of which he confirmed the judgment and decree dated 31-10-1975 passed by Sri H. P. Tripathi, the then Munsif Jaunpur decree ing original Suit No. 382 of 1970, Indra Pati v. Khedu and others. The trial court decreed the suit ordering that the defendant Nos. 1 to 3 shall execute the sale-deed in favour of the plaintiff and defendant No. 4 after ac cepting the balance amount within two months failing which the same shall be done on execution side at the costs of them.
(2.) IT was alleged by the plaintiff in the plaint that the defendant No. 1 Khedu had agreed to sell the land in dispute vide registered agreement dated 24-2-1969 in favour of plaintiff Indrapati and defendant No. 4 for a consideration of Rs. 3, 000. Later on, vendor Khedu, defendant No. 1, since deceased, executed registered sale deed on 7-7-1970 in favour of defendants 2 and 3 (now defendant-appellants 2 and 3) who are the 'tarail sons' i. e. son's of previous wife of Khedu for a consideration of Rs. 4, 000. The plea of the defendant appellants is that the agreement was procured by playing fraud. IT was a case of usufructuary mortgage. The further plea of the defendants is that the defendant No. 1 Khedu had borrowed Rs. 1000 from plaintiff and had gone to the Registrar's office to execute the usufructury mortgage deed. The trial court, after considering the entire material on record, negatived all the pleas of the defendants and decreed the suit. Feeling aggrieved, an appeal was filed by the defendants before the lower appel late court which too was dismissed, though by a lengthy judgment upholding the finding arrived by the trial court. It was also held by the lower appellate court that the land in dispute was never purchased by the defen dant-appellants in good-faith for valuable consideration, obviously, the irresistable in ference was that in view of the close rela tions between defendant No. 1 and defen dants 2 and 3, they had knowledge of the previous agreement and it was a case of repurchase. It was also held that the plaintiff was always read, and willing to perform his part of contract and had never resiled. The view of the courts below was also that it was not a case of usufructuary mortgage and there was no case of repurchase. This is how the second appeal has been filed in this court. The appeal was admitted on the following substantial questions of law :- (1) Whether the amendment in the plaint through which the plea under Section 16-C was brought on record should not have been allowed after the limitation was over ?. If so, it's effect on the suit? (2) Whether the agreement to sale in respect of Sirdari property can be enforced ? (3) Whether appellants 2 and 3 were wrong ly denied the benefit of section 41 of the Transfer of Property Act ? If so, its effect. ?
(3.) I have heard the learned counsel for the parties and have perused the entire material on record. It has been submitted by the learned counsel for the appellants that the amendment was allowed after the bar of limitation of filing the suit. The lower appel late court rightly decided the plea by hold ing that the matter was covered by the plead ings and it was of explanatory nature. In India the law of amendment is not to be interpreted with respect to pleading hyper-technically but taking into consideration the social condition of litigants. The plain tiff filed the suit for enforcement of agree ment and the entire perusal of the pleadings shows that he was ready and willing to per form his part of contract. Mere repetition of word that he is ready and willing dose not mean that the person was automatically ready and willing to perform his part of Contract. It has to be judged from the con duct of the parties. The matter has been concluded by finding of fact by both the courts below and unless it is perverse and unreasonable, it is not liable to be set aside, f have gone through the record and evidence adduced as well as the pleadings of the par ties and find that the findings recorded by both the courts below are based on proper appreciation of the material on record.;