Anil Kumar Choudhary, J. - (1.) This Second appeal under Section 100 of the Code of Civil Procedure at the instance of the defendant-respondentappellant is directed against the judgment and decree dated 01.10.2002 passed by the 1st Additional District Judge, Chatra whereby and whereunder the learned 1st Additional District Judge allowed the Title Appeal no. 49 of 1998 and set aside the judgment and decree dated 31.07.1998 passed by the Subordinate Judge-I, Chatra in Title Suit No.16 of 1994.
(2.) The respondent of this Second Appeal instituted the aforementioned Title Suit No.16 of 1994 with a prayer for directing the defendant to execute and register a sale deed for the suit property in favour of the plaintiff and if the defendant fails to execute and register the sale deed within the time fixed by the court, it was prayed that the Officer of the court be appointed to execute and register the sale deed and that the plaintiff be put in khas possession over the suit property and other reliefs.
(3.) The case of the prosecution in brief is that the defendant being in urgent need of the money to perform the marriage of his daughter approached the husband of the plaintiff to purchase the suit property which consists of a house. The husband of the plaintiff became ready to purchase the suit property in the name of his wife who is the plaintiff of the suit. The consideration money for the suit property was negotiated and fixed at Rs.40,000/-. It was agreed to and decided between the parties that the husband of the plaintiff shall advance Rs.30,000/- on behalf of the plaintiff to the defendant and the defendant in token of receipt of Rs.30,000/- shall execute and register a deed of Baibeyanama in favour of the plaintiff for the suit property and whenever the husband of the plaintiff will pay the remaining balance amount of Rs.10,000/- to the defendant towards consideration money of the suit property within 17.11.1994, the defendant shall execute and register a sale deed in favour of the plaintiff in respect of the suit property at the cost of the plaintiff. It is further the case of the plaintiff that the husband of the plaintiff advanced Rs.30,000/- in cash to the defendant and in lieu thereof, the defendant executed registered deed of Baibeyanama No. 5483 of 1992 in favour of the plaintiff on 17.11.1992 and the defendant also executed a separate receipt in token of acceptance of the payment of Rs.30,000/- to him. Thereafter, the husband of the plaintiff and plaintiff approached the defendant several times requesting him to receive the balance consideration amount of Rs.10,000/- but the defendant deferred to receive the said Rs.10,000/- on some plea or other and lastly on 13.07.1994 when the husband of the plaintiff again requested the defendant to receive Rs.10,000/- towards balance consideration money and to execute and register the sale deed at the cost of the plaintiff, the defendant lastly refused to receive money and to execute and register the sale deed in respect of the suit property. The plaintiff thereafter sent a notice through his lawyer on 18.07.1994 to the defendant requesting him to receive the balance consideration amount of Rs.10,000/- and to execute and register a sale deed in respect of the suit property but instead of receiving Rs.10,000/- and executing the sale deed, the defendant through his advocate sent a reply denying execution of any deed of Baibeyanama by him. Hence, the plaintiff has filed the suit. The plaintiff has deposited Rs.10,000/- only by a civil challan in favour of the defendant. In his written statement, the defendant took the specific plea in paragraph 3 of his written statement that he never entered into any agreement with the plaintiff much less an agreement to sale of the suit premises which is the residential house of the defendant and his family. The defendant further pleaded that the husband of the plaintiff agreed to advance a sum of Rs.30,000/- to the defendant under the mutual understanding against the security of the suit premises which is the dwelling place of the defendant and his family members. The amount of Rs.30,000/- has been advanced to the defendant by the husband of the plaintiff as a loan at the interest of 6% per annum on agreeing that the suit premises will be the mortgaged property in respect of the said advance, by executing a formal agreement to sale as security towards repayment of the loan but never to be acted upon. It is also the case of the defendant that it is unconscionable that any sane person will agree to sale his own dwelling house for a paltry sum of Rs.40,000/- when the market value of the said house at the relevant time was Rs.5,00,000/-. It is the plea of the defendant that the fact that it was agreed to, that the remaining consideration amount of Rs.10,000/- which was small amount was to be paid within a period of two years specifying the date ending on 17.11.1994 as the same was also mentioned in the said deed of Baibeyanama, itself indicates that the document in question was not an agreement for sale rather the same was executed for the purpose of securing the advance which was given by the husband of the plaintiff to the defendant. The defendant also took the plea that the deed of Baibeyanama was never read over to the defendant and the defendant was not knowing the contents of the said deed of Baibeyanama and as the defendant had no dishonest intention hence, the defendant at the request of the husband of the plaintiff gave a receipt noting on a blank paper in its margin to the effect that he has received Rs.30,000/-. The defendant also pleaded that the contents of the receipt was not written in his presence so the defendant is not aware about the contents of the said receipt. In paragraph 9 of the written statement it was averred by the defendant that the deed of Baibeyanama dated 17.11.93 (sic 17.11.92) executed by the defendant is not a deed of Baibeyanama but was collusively created instead of a deed of mortgage in essence and reality only to avoid the provision of law and that the deed of mortgage in its actual term was not written, because the Plaintiff's husband or the Plaintiff had no money lending licence at the time. It was also pleaded by the defendant that the plaintiff or her husband never approached nor offered the defendant a sum of Rs.10,000/- at any point of time prior to 17.11.1994. In response to the notice of the plaintiff through her advocate, the defendant through his advocate requested the plaintiff and her husband to take refund of the loan amount of Rs.30,000/- with interest at the rate of 6%.;