- (1.) This is plaintiffs Second Appeal. The suit was decreed in part. Shri Aparesh Kumar Singh, Advocate appeals on behalf of the appellant and Shri Manjul Prasad, Sr. Advocate, assisted by Shri Dilip Kumar Prasad, Advocate, on behalf of the respondents.
(2.) The second appeal arises from Title Suit No. 202 of 1975 preferred by the plaintiff against the original defendant Smt Triveni Devi claiming relief of specific performance of contract entered into between the plaintiff and the original defendant- Smt. Triveni Devi. The case set up by the plaintiff before the trial court and as detailed in the plaint is that on 07.12.1972, an agreement to sell was entered into in respect of the property mentioned at the bottom of the schedule of the plaint and alternative relief, in the event the plaintiff is not entitled to relief (a) i. e. specific performance of contract then the defendant be directed to refund Rs. 5,000/- with interest @ 12% per annum with effect hum 07.12.1972 and also compensation of Rs. 10,000/- with interest and also award cost.
(3.) The case of the plaintiff is as follows. - (i) The defendant Smt. Triveni Devi is the owner of the suit land. The defendant entered into an agreement on 07.12.1972 with the plaintiff to sell the suit property to her for a total consideration of Rs. 1,27,500/- The plaintiff paid Rs. 5,000/- as advance to be adjusted against the total consideration. The rate of the land was settled as Rs. 5100/- per katha. It was agreed between the plaintiff and the defendant that the defendant will get her name mutated in the record of State of Bihar and to pay up-to-date rent before 28.02.1972. (ii) The plaintiff did not get any information from the defendant whether her name had been mutated in the record of State of Bihar, the plaintiff therefore inquired from the defendant and thereafter the plaintiff intimated that the defendant was unable able to get her name mutated till then. (iii) Although the defendant could not gel her name mutated, the plaintiff agreed to purchase the suit land, consequent thereon the land was measured for preparing the map to be annexed with the sale deed. The plaintiff also requested the defendant to obtain necessary clearance certificate from the Income Tax Department and also a draft of the sale deed was handed over for approval. The defendant thereafter failed to perform her part of the deed and no steps were taken to obtain the necessary documents. This lack of interest was evidently a way to act upon the agreement.;