- (1.) THIS second appeal is against the judgment and decree of Additional District Judge III, East Singhbhum, Jamshedpur passed in Title Appeal No.12 of 1994.
(2.) THE plaintiff/respondent is the appellant. He had filed suit for a decree for specific performance of agreement and for a decree for executing and registering sale deed in respect of a house, situated at Holding No.6, Line No.1, Namda Basti, P.S. Golmuri, Town Jamshedpur, District East Singhbhum. According to the plaintiff, the said house was owned by Kanhaiya Mishra, father of the defendant. Kanhaiya Mishra agreed to sell his said house property to the plaintiff for a consideration amount of Rs.25,000/. Kanhaiya Mishra received Rs.6,005/as advance on 23rd February, 1977 and executed a receipt thereof. Again on 25th March, 1977 he received a sum of Rs.4,000/and executed a receipt. Kanhaiya Mishra died on 10th November, 1979 before executing the sale deed in favour of the plaintiff. After the death of Kanhaiya Mishra, his sons, namely, Liladhar Mishra (Defendant No.1) and Sachidanand Mishra (Defendant No.2) and his wife, namely, Vidhya Devi (Defendant No.3) inherited the said property along with other properties. The plaintiff approached the Defendant No.1 and informed him about the said agreement with his father and payment of advance of Rs.10,005/and requested him to sell the aforesaid property in his favour. The Defendant No.1 expressed his inability saying that the suit property is joint and he cannot execute sale deed alone. Later on the legal heirs of Kanhaiya Mishra partitioned the joint properties amicably. The said house property was allotted to the share of Defendant No.1. He agreed to sale the said property and received Rs.9,995/out of the balance amount. He executed agreement dated 4th April, 1982 (Ext.2) and promised to sell the aforesaid property to the plaintiff. But in spite of repeated requests, said defendant did not execute and register sale deed in favour of the plaintiff. It was asserted that the plaintiff was/is ready and willing to perform his part of agreement. He had sent notice to the Defendant No.1 to that effect, but the Defendant No.1 refused to execute the sale deed. The plaintiff, thereafter, filed the said suit, praying for a decree against Defendant No.1 for specific performance of the agreement and for executing and registering sale deed and transferring the said property in favour of the plaintiff.
(3.) THE suit was contested by the defendants by filing written statement. According to Defendant No.1, the plaintiff has got no cause of action for the suit. The suit is not maintainable and is barred by limitation. The suit is also bad for nonjoinder of necessary parties. The sister of defendant, namely, Smt. Sushila Devi has not been made party. The defendant denied that Kanhaiya Mishra had agreed to sell his house property for a consideration amount of Rs.25,000/and had taken any advance. Money receipts mentioned by the plaintiff are forged and fabricated documents. Kanhaiya Mishra died on 10th November, 1979. Had there been any agreement of 1977, it might have been honoured by Kanhaiya Mishra. He was a teacher in R. D. Tata High School at Jamshedpur. He had constructed the house while he was in service. He had retired in 1969. After retirement, he had got huge amount in the form of gratuity, provident fund etc. He was also getting freedom fighter pension till his death. There was no necessity to take money from others or to sell his house. After the death of Kanhaiya Mishra, Defendant No.1 was not the sole owner of the house. If there was any agreement, the plaintiff should have approached all the heirs of Kanhaiya Mishra. He denied that he had promised to sell the property as alleged by the plaintiff. He also emphatically denied the plaintiff's claim of receipt of Rs.9,995/as an advance and he also denied execution of any agreement either on 4th April, 1982 or on any other date. The plaintiff had deliberately used thumb impression, which was obtained for the purpose of appointment of Panches to arbitrate the dispute between the Defendant Nos.1 and 2 and other family members. The plaintiff has been set up by the interested person. The defendant is matriculate and there is no question of getting the agreement scribed by some other person. The whole story of the plaintiff is invented and dishonestly concocted. Market value of the property is not less than rupees one lac. The suit is not maintainable and is liable to be dismissed.;