KHEDU Vs. INDRAPATI

JUDGEMENT

(1.) THIS is a second appeal against the judgment and decree dated 15-9-1983 in Civil Appeal No. 158 of 1975 by Sri, R. C. Gupta, Special/additional District Judge, Jaunpur by virtue of which he confirmed the judgment and decree dated 31-10-1975 passed by Sri H. P. Tripathi, the then Munsif Jaunpur decree ing original Suit No. 382 of 1970, Indra Pati v. Khedu and others. The trial court decreed the suit ordering that the defendant Nos. 1 to 3 shall execute the sale-deed in favour of the plaintiff and defendant No. 4 after ac cepting the balance amount within two months failing which the same shall be done on execution side at the costs of them.

(2.) IT was alleged by the plaintiff in the plaint that the defendant No. 1 Khedu had agreed to sell the land in dispute vide registered agreement dated 24-2-1969 in favour of plaintiff Indrapati and defendant No. 4 for a consideration of Rs. 3, 000. Later on, vendor Khedu, defendant No. 1, since deceased, executed registered sale deed on 7-7-1970 in favour of defendants 2 and 3 (now defendant-appellants 2 and 3) who are the 'tarail sons' i. e. son's of previous wife of Khedu for a consideration of Rs. 4, 000. The plea of the defendant appellants is that the agreement was procured by playing fraud. IT was a case of usufructuary mortgage. The further plea of the defendants is that the defendant No. 1 Khedu had borrowed Rs. 1000 from plaintiff and had gone to the Registrar's office to execute the usufructury mortgage deed.

(3.) I have heard the learned counsel for the parties and have perused the entire material on record.