D.G.R.PATNAIK,J. - (1.) THIS second appeal filed by the defendant/appellant, is directed against the judgment dated 1.12.1990 and its corresponding decree dated 10.12.1990 passed by the 5th Additional Judicial Commissioner, Ranchi in Title Appeal No. 71/29 of 1987 -1990, whereby he allowed the appeal filed by the plaintiff/respondent by reversing the judgment dated 25.7.1987 and decree dated 5.8.1987 passed by the Sub -Judge, 7th, Ranchi in Title Suit No. 248/39 of 1984 -1987, dismissing the suit of the plaintiff. During the pendency of this appeal, the original appellant namely, Smt. Rima Devi having died, her legal heirs have been substituted. The suit as filed by the plaintiff was for specific performance of contract and for cancellation of the sale deed dated 11.1.1982 executed in favour of defendant No. 1.
(2.) FOR better appreciation of the dispute and the questions raised for determination, a brief statement of the facts of the case may be recorded. According to the case of the plaintiff, the property bearing M.S. Plot No. 1446 measuring 0.007 karis and another plot bearing M.S. Plot No. 1447 measuring 0.107 karis within ward No. II stood recorded in the name of Ram Kumar Mahto, father of Rajeshwar Mahao, Proforma defendant. The suit property comprises of land with khapparposh house measuring 2 katthas as described in the Schedule of the plaint, within the aforesaid plots of lands. On the plea of providing medical treatment to his ailing father, the proforma defendant went on borrowing money from the plaintiff from 20.7.1980 with an assurance that he would transfer his land by way of sale to the plaintiff. The father of the proforma defendant died on 16.8.1980 leaving behind Braj Kishore Mahto (Proforma defendant) and his elder brother Rajeshwar Mahto and on the plea of meeting the funeral expenses, the proforma defendant borrowed more money from the plaintiff. Ultimately, on 4.12.1981 the proforma defendant executed an Agreement for sale in favour of the plaintiff in respect of the suit lands claiming the same to be within his share of the entire property, for consideration of Rs. 6,000/ -. He acknowledged the receipt of a sum of Rs. 3,500/ -which he had earlier received from the plaintiff as earnest money. The plaintiff who was initially inducted as tenant within the suit premises, continued to remain in possession of the same even after the aforesaid date of Agreement as part performance of contract. The proforma defendant agreed to execute the Deed of transfer in favour of the plaintiff after receiving the sum of Rs. 2,500/ - being the balance of the consideration amount. However, despite repeated requests of the plaintiff and his willingness to pay the balance of the consideration amount, the proforma defendant did not execute the sale deed in respect of the property assured in the Agreement, in favour of the plaintiff. On the other hand, the proforma defendant and his brother executed a sale deed in favour of the defendant No. 1 on 11.1.1982 in respect of the entire; 10 katthas of the property including the portion which the proforma defendant had agreed to sell to the plaintiff. On the basis of the above stated pleadings, the plaintiff has prayed for a decree for specific performance of contract in terms of the Agreement entered into by and between him and proforma defendant and for cancellation of the sale deed dated 11.1.1982 executed by proforma defendant and his brother in favour of the defendant No. 1 declaring the same as void, illegal, inoperative and fraudulent. The proforma defendant namely respondent No. 2 appeared in the suit and filed his written statement, whereby he had challenged the entire claim of the plaintiff denying and disputing the plaintiff's claim as being false and misleading and claiming that the suit was not maintainable and is liable to be dismissed. However, at the trial, he did not contest the suit. Rather, he figured as a witness on behalf of the plaintiff. Defendant No. 1 namely the appellant herein, had offered full contest to the plaintiff's suit by filing her written statement and also by adducing evidence on her behalf. Denying the entire claim of the plaintiff as being false and misleading and also disputing the maintainability of the suit for lacking cause of action and for non -joinder of necessary party and also being barred by limitation, the case of the contesting defendant No. 1 was that after the death of the father, the elder brother of Braj Kishore Mahto (proforma defendant) namely Rajeshwar Mahto was looking after the affairs of the family as Karta and manager of the joint family. The properties of late Ram Kishore Mahto had devolved upon both the brothers who became joint owners of the entire inherited properties and as such, the proforma defendant did not have any exclusive title or possession over the suit property. Denying the plaintiff's claim of the Agreement for sale, allegedly executed by the proforma defendant in favour of the plaintiff, as being forged and fabricated document, and never executed by the proforma defendant, the claim of the contesting defendant was that by virtue of a sale deed executed and registered by both the brothers namely Rajeshwar Mahto and Braj Kishore Mahto, they had sold the entire 10 katthas of land, including the suit land, to the contesting defendant for a consideration of Rs. 30,000/ -. Pursuant to the sale, the contesting defendant No. 1 was put in possession of the demised properties on 11.1.1982. The contesting defendant has further claimed that the plaintiff was inducted within the suit property as tenant and he is still continuing as tenant in respect of the suit property and since the defendant No. 1 has been pressing the plaintiff to vacate the suit premises, the plaintiff has come up with the false and frivolous case to defeat the right, title and interest of the defendant No. 1 in the suit property.
(3.) IT may be mentioned here that in his written statement, the proforma defendant (respondent No. 2) had virtually supported the entire case of the defendant No. 1. He has denied to have executed any Agreement of sale in respect of the suit property in favour of the plaintiff or to have received any money from the plaintiff as purported consideration money. He has also affirmed that he along with his brother Rajeshwar Mahto had sold away the entire lands including the suit property for a consideration of Rs. 30,000/ - and brothers had executed the sale deed in favour of the defendant No. 1 on 11.1.1982 and had also delivered possession of the demised lands to the defendant No. 1. On the basis of rival pleadings, learned trial court had framed following issues. 1. Is the suit as framed maintainable? 2. Has the plaintiff got valid cause of action for the suit? 3. Is the suit bad for non -joinder of parties? 4. Is the suit barred by the Law of Limitation? 5. Whether the alleged deed of agreement for sale executed by defendant No. 2 in favour of the plaintiff on 4.12.81 is a forged and fabricated document as alleged by the defendant or a genuine document as alleged by the plaintiff? 6. Whether the defendant No. 2 was competent to execute the deed of agreement for sale in favour of the plaintiff? 7. Whether the plaintiff is entitled to a decree for specific performance of contract for sale with respect to the suit land against the defendant? 8. Whether undue influence exercised and fraud was played upon defendant No. 2 for obtaining his signature on the sale deed No. 273 of 1982 executed in favour of defendant No. 1, Rima Devi with respect of the house property including suit property? 9. Whether the plaintiff is entitled to a decree for declaration of the sale deed No. 273 of 1982 as null and void and without consideration? 10. Is the plaintiff in possession of the suit land in view of the agreement for sale as executed by defendant No. 2 alleged by the plaintiff? 11. To what other relief or reliefs, if any the plaintiff is entitled? ;