9911796707
TMI Blog1985 (8) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... lso for obtaining possession of the suit properties bearing Khasra No. 554, 557, 560 and 561 situated in village Kishorepura Tehsil Neem-ka-thana. The suit was originally filed against Govinda and appellant No. 4 Jhabar. Govinda however died during the pendency of the suit and appellants Nos. 1 to 3 were substituted as legal representatives of deceased Govinda. 3. The case of the plaintiff respondent was that an agreement to sell agricultural land measuring 7 bighas 18 biswas bearing the aforesaid Khasra Nos. in village Kishorepura along with Quwadi situated in the said agricultural land, was entered between him and the defendant No. 1 deceased Govinda on 7-5-1967. Deceased Govinda was the Khatedar of the aforesaid agricultural land. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing evidence of both the parties, dismissed the plaintiffs suit vide its judgment dated 31-7-1973 holding that the defendants never executed the agreement (Ex. 1) on 7-5-1967 nor received Rs. 6500/- as part of consideration. The plaintiff respondent filed an appeal in the court of learned District Judge, Jhunjhunu, who reversed the finding on issue No. 1 regarding execution of agreement and receipt of Rs. 65007- from the plaintiff by deceased Govinda, holding that the execution of the agreement (Ex. 1) and receipt of Rs. 6500/- to the defendant Govinda by the plaintiff were proved on the evidence on record. Learned District Judge further did not think it proper to pass a decree for specific performance in favour of the plaintiff and decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 to 3 have not inherited any property from deceased Govinda, therefore, they are not liable to make any payment under the decree passed by the first appellate court. This plea of not having inherited any property left by deceased Govinda has not been mentioned in the pleadings before the trial court by the appellants Nos. 1 to 3. Therefore, the appellants cannot take this plea for the first time now in the second appeal. Learned counsel for the appellants has placed reliance on and the appellants Nos. 1 to 3 can always take this plea in the execution proceedings regarding not having inherited any property from deceased Govinda. 7. The second substantial question of law involved in this case is whether the amount of decree could have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to passage of time did not think it proper to set aside the gift deed and get possession of the land to the plaintiff respondent but passed only decree for the amount paid by the plaintiff to the deceased Govinda along with interest. He has further argued that charge on the property gifted to Jhabar appellant No. 4 in this appeal be created to the extent of decretal amount. In this respect he has drawn my attention to the provisions of Section 55(6)(b) of the Transfer of Property Act. 9. Section 55 of the Transfer of Property Act deals with rights and liability of buyer and seller and Sub-clause (b) of Sub-section (6) while dealing with the rights of buyer lays down that "unless he has improperly declined to accept delivery of the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have all rights over the land from the day of agreement which the seller had and the seller shall have nothing to do with the same. In Clause (2) of the said agreement it is further laid down that Rs. 1000/- shall be paid by the buyer to the seller at the time of registration which was to be done in the month of "Ashadh Samwat 2025". It is further laid down in Clause (3) of the said agreement that if the seller does not get the sale deed registered within the stipulated time, the purchaser shall have right to get the agreement executed and registration made through the court of law. In Clause (5) it has been clearly stated that any action taken against the terms and conditions of this agreement shall be ineffective as far as the agreement w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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