KHEDU Vs. INDRAPATI

JUDGEMENT

(1.) This is a second appeal against the judgment and decree dated 15.94983 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 decreeing 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 accepting 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 No. 2 and 3 (now defendant appellants No. 2 and 3) who are the 'Tarail sons', i.e., sons 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. 1,000 from plaintiff and had gone to the Registrar's Office to execute the usufructuary mortgage deed.

(3.) The trial Court, after considering the entire material on record, negatived all the pleas of the defendants and decreed the suit. Feeling aggrieved, an appeal was filed by the defendants before the lower appellate Court which too was dismissed, though by a lengthy judgment upholding the finding arrived by the trial Court. It was also held by the lower appellate Court that the land in dispute was never purchased by the defendant-appellants in good faith for valuable consideration. Obviously, the irresistible inference was that in view of the close relations between defendant No. 1 and defendants No. 2 and 3, they had knowledge of the previous agreement and it was a case of re-purchase. It was also held that the plaintiff was always ready and willing to perform his part of contract and had never resiled. The view of the courts below was also that it was not a case of usufructuary mortgage and there was no case of re-purchase. This is how the second appeal has been filed in this Court.