VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the plaintiff -appellant has been preferred against the impugned judgment and decree dated 13.7.1989 and 31.7.1989 respectively passed in Title Appeal No. 10 of 1987, by Smt. Shakuntala Sinha, . 2nd Additional District Judge, Singhbhum, Chaibasa whereby and whereunder the judgment dated 27.5.1987, dismissing the Title Suit No. 62 of 1979 by 3rd Subordinate Judge, Chaibasa for specific performance of contract for sale with a direction for refund of the earnest money to the plaintiff -appellant was affirmed and the said appeal was dismissed.
(2.) THE plaintiff -appellant had filed Title Suit No. 62 of 1979 for specific performance of contract of sale of the suit properly described in Schedule A of the plaint directing the defendant -respondent to execute and register the sale deed in favour of the plaintiff -appellant failing which the sale deed may be executed and registered by the Court. The case of the plaintiff -appellant in brief, is that the defendant -respondent is the owner of Chaibasa Town Khas Mahal holding No. 31/1822 plot No. 1648 having an area of 5 kathas 17 dhoors i.e. 15 decimals situate in Mohalla Bari Bazar Kumhatoli in the town of Chaibasa fully detailed in Schedule A of the plaint under a lease granted by the State for a periods of 39 years effective from 1.4.1965, the defendant -respondent fell in need of money and desired to sell the suit property and the original plaintiff (since dead) agreed to purchase the same for a consideration of Rs. 4,000.00 and a registered deed of agreement of sale dated 18.11.1976, was executed by both the parties in view of the fact that the requisite permission of the Deputy Commissioner, Singhbhum is required for the sale of the suit land and the plaintiff paid Rs. 3000.00 only as earnest money and undertook to pay the balance of the consideration money at the time of the registration of the sale deed and the defendant -respondent as per the terms of the agreement agreed to apply for necessary permission for the said transfer within one year and in part performance of the agreement of sale the defendant -respondent delivered possession to the plaintiff -appellant over the suit, property and the plaintiff -appellant continued in possession of the said property and has been using the same as a firewood depot thereon. It is alleged that there had been a proceeding under Sec.144 of the Code of Criminal Procedure at the instance of the defendant -respondent against the plaintiff -appellant and Tej Ram Mistri in respect of the suit property which was subsequently converted into a proceeding under Sec.145 of the Code of Criminal Procedure in which the possession of the defendant -respondent was declared and the revision filed by the plaintiff -appellant against the said order is subjudice. It is further alleged that the defendant -respondent did not comply to the terms of the agreement of sale in spite of repeated demands and has also not applied for permission for the sale of the suit property and is also not taking any interest for executing the sale deed which he is bound to do whereas the plaintiff -appellant has always been prepared to comply with the terms of the agreement and it prepared to make the payment of Rs. 1,000.00 i.e. the balance amount of the consideration.
(3.) THE case of the defendant -respondent inter alia, is that he is the owner of the suit property along with his sons and wife and the said property is his ancestral property and the suit property can be sold only when his sons and his wife agree to sell the same as they jointly hold the suit property and there was an understanding between him and the plaintiff -appellant that in case the sons and the wife do not agree, the earnest money with compensation shall be returned to the plaintiff -appellant and the said transaction was neither for legal necessity nor for the benefit of the joint family and on the said understanding the deed of agreement for sale was executed. It is alleged that he sent a notice to the plaintiff -appellant to take back the earnest money with compensation when his sons and wife refused to sell the suit property but the plaintiff -appellant expressed her unwillingness to take back the earnest money. The further case of the defendant - respondent is that the suit property is a lease hold property and any transfer in respect thereof requires permission of the Town Khas Mahal Authority and the said agreement for sale is not lawful without the permission of the said authority as per terms and conditions of the lease and the defendant -respondent had never agreed and undertook to apply for necessary permission within one year but always stated to the plaintiff -appellant that in case his sons and wife agree he will apply for permission for sale. It is alleged that the plaintiff -appellant through Tej Ram Mistri had attempted to take forcible possession over the suit property and tried to stack firewood for which the plaintiff -appellant himself lodged an information to the police on the basis of which a proceeding under Sec.144 of the Code of Criminal Procedure was initiated which was later on converted in a proceeding under Sec.145 of the Code of Criminal Procedure and in the said proceeding the possession of the defendant -respondent was confirmed and the plaintiff -appellant is not entitled to have a specific performance of the contract in the circumstances stated above.;