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Balaram Barik and ors. Vs. Banambara Maharana - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 353 of 1977
Judge
Reported inAIR1982Ori271
ActsSpecific Relief Act, 1963 - Sections 22
AppellantBalaram Barik and ors.
RespondentBanambara Maharana
Appellant AdvocateB.H. Mohanty, Adv.
Respondent AdvocateM. Patra, ;B.K. Dagara and ;B. Misra, Advs.
Excerpt:
.....of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is..........plaintiff's case was that defendant no, 1 balaram barik, who was the owner in possession of the suit land measuring 0.36 acre, contracted to sell the same to him for a sum of rs. 2,000 and on receipt of a sum of rs, 1,500 as part consideration delivered possession in his favour. the contract was entered into on 21-1-75 and the deed of contract (ext. 1) was executed on that date. he remained in possession of the suit land from the date of contract and offered the balance consideration of rs. 500 to defendant no. 1 but he avoided to execute the sale deed. on 17-3-75, defendant no. 1 sold 0.08 acre out of the suit land to defendant no. 5 under a registered sale deed (ext. a) and on 9-4-75 he also sold 0.08 acre out of the suit land under a registered sale deed (ext. b) to defendants 2, 3.....
Judgment:

P.K. Mohanti, J.

1. The second appeal is by the defendants against a reversing decree passed in a suit for specific peiv formance of contract for sale of land.

2. The plaintiff's case was that defendant No, 1 Balaram Barik, who was the owner in possession of the suit land measuring 0.36 acre, contracted to sell the same to him for a sum of Rs. 2,000 and on receipt of a sum of Rs, 1,500 as part consideration delivered possession in his favour. The contract was entered into on 21-1-75 and the deed of contract (Ext. 1) was executed on that date. He remained in possession of the suit land from the date of contract and offered the balance consideration of Rs. 500 to defendant No. 1 but he avoided to execute the sale deed. On 17-3-75, defendant No. 1 sold 0.08 acre out of the suit land to defendant No. 5 under a registered sale deed (Ext. A) and on 9-4-75 he also sold 0.08 acre out of the suit land under a registered sale deed (Ext. B) to defendants 2, 3 and 4. The plaintiff's contention was that the defendants 2 to 5 having prior knowledge of his contract obtained the sale deeds (Extg. A and B) without payment of consideration,

3. Defendant No. 1 denied the contract and contended that he took a loan of Rs. 300 only from the plaintiff and gave his L.T.I. on a blank paper which has been converted into a deed of contract for the purpose of this case. He also denied having received Rs. 1,500 from the plaintiff. He admitted to have sold a portion of the suit land to defendants 2 and 5 under the two sale deeds (Exts. A and B).

4. Defendants 2 to 5 took the stand that they are bona fide purchasers for value without notice,

5. The learned Munsif dismissed the suit holding that there was no contract between the plaintiff and the defendant No. 1 and that the deed of contract (Ext. 1) is not genuine. He also held that there was no delivery of possession of the suit land in favour of the plaintiff. He accepted the contention of defendants 2 to 5 that they are bona fide purchasers for value without notice of any previous contract.

On appeal, the learned Additional Subordinate Judge believed the plaintiff's case and held that the deed of agreement is genuine. He also held that defendant No. 1 received a sum of Rupees 1,500 as part consideration and that the plaintiff was in possession of the suit land from the date of the contract. He agreed with the finding of the trial Court that defendants 2 to 5 are bona fide purchasers for value without notice. He passed a decree directing the defendant No. 1 to refund the sum of Rs. 1,500 to the plaintiff. He further directed that the plaintiff would not vacate possession of the suit land unless the sum of Rupees 1,500 was refunded to him by de fendant No. 1,

6. Although all the five defendants have jointly filed this appeal, the learned counsel appearing on behalf of the appellants did not press the appeal so far as defendant No. 1 is concerned. He did not challenge the correctness of the decree directing defendant No. 1 to refund the sum of Rs. 1,500. He challenged the decree allowing the plaintiff to retain possession of the suit land until return of Rs. 1,500 by defendant No. 1,

7. As already mentioned, both the courts below concurrently found that defendants 2 to 5 are bona fide purchasers for value without notice. These defendants have nothing to do in connection with the, refund of consideration by defendant No. 1. There is no reason why they should be kept out of possession until refund of consideration by defendant No. 1. The appellate court was, therefore, not justified in allowing the plaintiff to retain possession of the lands purchased by defendants 2 to 5 under the sale deeds (Exts, A and B).

8. In the result, the decree allowing the plaintiff to retain possession of the portion of land purchased by defendants 2 to 5 is set aside, Subject to this modification, the appeal stands dismissed but In the circumstances without any order as to costs.


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