Andhra HC (Pre-Telangana)
Mirza Mahboob Baig And Ors. vs Dan Venkatnarasimha Reddy on 6 November, 1995
Equivalent citations: 1996(2)ALT235, 1996 A I H C 3070, (1996) 2 ANDH LT 235
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
JUDGMENT V. Bhaskara Rao, J.
1. The judgment and decree in O.S. No. 188/1978 on the file of the Subordinate Judge at Karimnagar dated 31-1-1983 are assailed by the defendants. The suit of the plaintiff for specific performance of contract of sale dated 1-9-1978 in respect of the suit house and for recovery of possession has been decreed with costs.
2. The facts in brief are that appellant No. 1 is father of appellants No. 2 and 3 that there was an agreement of sale of the suit house between the respondent and appellant No. 1 for a consideration of Rs. 43,000/-, out of which an advance ofRs.5,000/-was paid on the date of agreement and appellant No. 1 agreed to receive the balance of Rs. 38,000/- and to execute registered sale deed and to deliver possession of the suit house within one month that then the respondent requested appellant No. I several times to get a tenant who is residing in the shed in the suit house vacated, to receive the balance of consideration and to execute registered sale deed and deliver vacant possession of the suit house, but he failed to perform his part of the contract and that the respondent also sent a letter dated 27-9-1978 under certificate of posting demanding him to receive the balance of consideration and to execute the registered sale deed, but there was no response and finally a legal notice dated 22-11-1978 was issued to the same effect. Appellant No. 1 got sent an evasive reply asking for a photostat copy of the agreement of sale. The respondent has always been ready with the balance of consideration of Rs. 38,000/- and offered to pay him several times and finally through a legal notice dated 22-11-1978 and sought for a decree for specific performance and possession.
3. Appellant No. 1 filed a written statement denying the material averments of the plaint. It is denied that there was an offer to sell the suit house or that there was an agreement to sell for Rs. 43,000/-. The market value of the suit house is said to be not less than Rs. 1,25,000/-. It is further averred that the respondent approached him for letting the suit house on lease and he agreed to pay rent of Rs. 300/- per month and as the suit house required some repairs, appellant No. 1 asked him to pay Rs. 5,000/- in advance for the repairs and construction of eastern compound wall and thereupon the respondent agreed to the above terms and got a document prepared and paid Rs. 5,000/- as advance. The appellant No. 1 who is an old man and who has no knowledge of English, executed the said document thinking that it was a lease deed, but the respondent played fraud upon him and got an agreement of sale executed by him. Hence the said agreement is illegal, void and not binding. He denied that he received any letter sent under certificate of posting, but he admitted that he received legal notice dated 22-11-1978. The tenant who is residing in the shed is a necessary party to the suit.
4. During the pendency of the suit, appellants No. 2 and 3 got themselves impleaded as parties on the ground that the suit house belongs to them and not to their father and that he is only a benamidar. The averments of their written statement are that in or about the month of April, 1973, they came to know that one Mahmood Ali Khan, who is a relative of appellant No. 1 intended to sell the suit house for the marriage of his daughter and hence they requested appellant No. 1 to negotiate the transaction and they paid the purchase money and got the registered sale deed executed. The appellant No.1 instead of getting a sale deed executed in their favour, got it executed in his name as a benamidar and hence they obtained an instrument from him reciting the above facts on 3-6-1973 with a view to avoid future complications. It is asserted that the appellant No. 1 did not enter into any agreement of sale nor he was competent to do so. The respondent wanted to take the suit house on rent and he paid Rs. 5,000/- as advance for repairs and construction of compound wall and taking advantage of the old age and weak eye sight of appellant No. 1, the respondent played fraud and obtained their father's signature on a bogus document.
5. On the above pleadings, the following issues and an additional issue are framed by the trial Court:-
1. Whether the suit agreement of sale was obtained by misrepresentation that it was a lease deed and if it is not binding on the defendants?
2. Whether the tenant Chote Mian is a necessary party to suit?
3. To what relief, if any is plaintiff entitled?
Additional issue:
"Whether the suit house was purchased by the defendants No. 2 and 3 and the defendant No. 1 was only a Benamidar under the registered sale deed 24-4-1973?
6. The appellants examined four witnesses on their behalf. D.W.I, Sarvar Baig, is appellant No. 2. He reiterated the facts averred in the written statements of his father as well as himself. His version regarding the sale deed being taken in the name of his father-appellant No. 1 is that he himself and his brother had to go to Guntur for collection of their amounts relating to sale of tobacco and on their return they found that the sale deed was executed in favour of appellant No. 1. He asserted that he himself and appellant No. 3 gave the sale consideration. He added that appellant No. 1 explained that some forms had to be signed by the purchaser also and as Appellants 2 and 3 were not available, he got the sale deed executed in his name. Ex.B-1 is the registered sale deed in favour of appellant No. 1 and Ex.B-2 is a document executed by him in favour of Appellants No. 2 and 3. Exs.B-3 and B-4 are the certificates showing sale of Virginia tobacco to the dealer at Guntur and Ex.B-5 is the letter of Inspector, Central Excise, Peddapalli and Ex.B-6 is the certified copy of pahani.
7. D.W.2 (Mirza Mahboob Baig) is appellant No. 1 and he deposed to the facts stated above and he asserted that appellants 2 and 3 are the real owners of the suit house. D.W.3 (Miraz Jahan Begum) is one of the vendors under Ex.B-1 and D.W.4 (Mohd. Afzal) is an attestor. D.W.5 (Gulam Mohd. Baig) is one of the attestors of Ex.A-1 agreement of sale.
8. The appellants (defendants) led the evidence as the burden of proof on the crucial issues was upon them. After their evidence was closed, the respondent/plaintiff adduced his evidence. The respondent examined himself as P.W.I and got two attestors of the agreement of sale Ex.A-1 examined as P.Ws. 2 and 3. The son-in-law of the respondent by name K. Gopal Reddy, who initiated the negotiations for purchase of the suit house and who was associated with the transaction is examined as P.W.4. Exs.A-1 to A-14 are got marked for the respondent/plaintiff. Ex.A-1 dated 1-9-1978 is the agreement of sale which is the basis for the suit; Ex.A-2 dated 27-9-1978 is the certificate of posting; Ex.A-3 dated 22-11-1973 is the office copy of legal notice and Ex.A-4 dated 28-11-1978, is the reply notice which was got sent by appellant No. 1. The remaining documents will be referred to in the relevant context.
9. The learned Subordinate Judge scrutinised the above oral and documentary evidence and held on additional issue that appellant No. 1 is not a benamidar and that appellants No. 2 and 3 did not purchase the suit house. On issue No. 1, the learned Subordinate accepted the version of the respondent that there was an agreement of sale in respect of the suit house between himself and appellant No. 1 and that the terms of the agreement were recorded in Ex.A-1.Hence he held issue No. 1 in favour of the respondent/plaintiff. On issue No. 2 it was held that the tenant is not a necessary party to a suit for specific performance of contract between the owner and purchaser. Accordingly the suit has been decreed directing appellant No. 1 to execute a sale deed in favour of the respondent/plaintiff after obtaining balance of consideration and the respondent has been directed to deposit the balance of consideration within one month. The relief of recovery of possession is also granted. Aggrieved by the above findings, judgment and decree, the defendants preferred this appeal.
10. Having regard to the grounds of appeal, pleadings of both sides and the contentions raised in this Court, the following points arise for consideration:-
1. Whether Ex.A-1 agreement of sale is true, valid and binding?
2. Whether the respondent has been ready and willing at all points of time to perform his part of the contract?
3. Whether the principles of equity weigh in favour of the appellants having regard to the fact that the balance of consideration was not deposited by the respondent within one month from the date of decree?
11. POINT NO. 1:
The learned Counsel for the appellants Mr. A. Pitchiah contended that Ex.B-1 sale deed dated 24-4-1973 is a nominal sale deed and that in fact the suit house was purchased by appellants 2 and 3 and therefore appellant No. 1 executed Ex.B-2 dated 3-6-1973 in favour of appellants 2 and 3 and that the lower Court failed to appreciate the evidence on the additional issue in its proper perspective. It is further contended that fraud was played upon appellant No. 1 taking advantage of his old age and ignorance of English and that Ex.A-1 was purported to have been taken under the guise of a rent agreement. Whereas the learned Counsel for the respondent Mr. C. Subba Rao argued that the lower Court weighed the probabilities while scrutinising the evidence on record and arrived at the correct conclusions both in regard to the purchase of suit property by appellant No. 1 and also the execution of Ex.A-1 agreement of sale in favour of the respondent. He pointed out that the appellants did not set up such a theory at the earliest opportunity, viz., the reply notice Ex.A-4 dated 24-11-1978, and their silence to an earlier letter sent under certificate of posting Ex.A-2 dated 27-9-1978 speaks volumes against them. He also contended that the appellant No. 1 not only purchased the suit property in his favour under Ex.B-1, but he also sought for mutation of his name in the municipality under Ex.A-5 dated 16-9-1975 and he secured an affidavit of the previous owner Mirza Mahboob Baig in respect of his claim that he purchased the same under Ex.B-1 and that the lower Court has taken into consideration all these aspects for recording its findings.
12. I carefully considered the above contentions. The reason for taking the sale deed Ex.B-1 in favour of appellant No. 1 instead of appellants 2 and 3, according to the appellants, is that both the appellants 2 and 3 happened to go to Guntur for collecting the sale proceeds of Virginia tobacco which was sold earlier and that appellant No. 1 was entrusted with the required money and he was asked to take a sale deed, but he was told at the Sub-Registrar's Officer that some signatures of the purchasers were required on some forms and as both appellants No. 2 and 3 were not available having gone to Guntur, the sale deed was taken in his name. I shall first examine whether the above reason fits into the evidence on record or not. A perusal of Ex.B-1 sale deed shows that the non-judicial stamps were purchased on 24-4-1973 and the execution of the document was completed on the same day and the document was presented for registration also on the same day. It may now be seen whether the appellants No. 2 and 3 went to Guntur during that period or not. Ex.B-3 is a certificate issued by Sileman Khan & Mahbub Khan Tobacco Packers and Exporters of Guntur showing that 3030 kgs of tobacco in 22 bundles was purchased from Mr. Sarwar Baig, s/o. Mahbub Baig {reference to appellant No. 2) on 28-2-1973, It further shows that an amount of Rs. 18,180/- was paid to appellant No. 2 on 15-3-1973. The evidence of D.W. 1 (Mirza Sarwar Baig), appellant No. 2, shows that he went to Guntur for selling the tobacco in the first instance and he returned and thereafter he once again went to Guntur for collecting the sale proceeds. Ex.B-3 shows that the sale proceeds were paid on 15-3-1973, whereas Ex.B-1 sale deed shows that the transaction was completed on 24-4-1973. Evidently, the version of the appellants that they went to Guntur to collect the sale proceeds during the period when Ex.B-1 sale deed was-executed cannot be true. It is not their case that they went to Guntur for third time, but on the other hand they went there only twice and those dates are indicated in Ex.B-3 and 28-2-1973 purchasing date and 15-3-1973 payment of amount of Rs. 18,180/-.
13. In this context it is note worthy that D.W. 1, Mirza Sarwar Baig(defendant No.2) stated that they took an agreement of sale executed in favour of himself and defendant No. 3 after the terms of the sale in their favour were finalised. Neither that agreement of sale is filed nor there is any reference to that agreement of sale in Ex.B-1 sale deed. There is a faint attempt to explain the same saying that agreement of sale is not traceable now, but I am unable to accept the same for the simple reason that if the version that Ex.B-1 sale deed is only a nominal document is true, the above agreement of sale assumes lot of importance, when they preserved Ex.B-1 sale deed, they ought to have preserved the agreement of sale also. The failure to file the above agreement of sale would lead to the only inference that there was no such agreement of sale. There is yet another piece of evidence which is against him. It is elicited in the cross-examination that he was paying the municipal taxes and he is in possession of the receipts. In such a case he should have filed those receipts in support of his version, but no such receipts are filed.
14. There are the additional circumstances which can also be weighed in favour of the respondent herein in addition to various circumstances recorded by the trial Court. It may be seen from the judgment under appeal that the trial Court found that, (1) appellant No. 1 gave an application in the Municipality for mutation of his name in the municipal records as the owner of the suit house even on the third day of the registered sale deed Ex.B-1 Ex.A-6 is the true copy of the affidavit of Mirza Hyder Baig, original owner, which was filed by defendant No. 1 in support of his application for mutation.
(2) that appellant No. 1 filed such other applications before the Municipality from time to time as admitted by him in his cross-examination, but appellant No. 1 never mentioned in any such application that the suit house belongs to appellants No. 2 and 3.
(3) that Ex.B-2 which is the sheet-anchor of the appellants case has not seen the light of the day till it was filed in the suit and that too with a considerable delay inasmuch as it was not filed along with the petition for impleading appellants No.2 and 3 not even along with their written statement.
(4) that the scribe and attestors as well as other witnesses who spoke regarding Ex.B-2 are all close relatives and interested witnesses.
(5) that above Ex.B-2 does not contain any recitals as to the circumstances under which the registered sale deed Ex.B-1 was taken in the name of appellant No. 1 instead of appellants 2 and 3.
(6) that even application for permission to construct the compound wall of the suit house some time prior to Ex.A-1 agreement of sale in favour of the respondent was signed by appellant No. 1 himself, and (7) that there is a specific plea that as Mahmood Ali Khan was related to appellant No. 1, he was asked to negotiate to purchase, but the evidence adduced by the appellants is entirely different inasmuch as both D.Ws. 1 and 2 deposed that appellant No. 1 went to Karimnagar and enquired about the intention to sell the suit house and returned without finalising the transaction and thereafter it was appellant No. 2, who finalised the transaction as his wife is the grand daughter of Hyderabad Baig, the original owner.
Thus, the inconsistancy between pleading and proof has been noticed and that the burden of proof that the ostensible owner under registered sale deed Ex.B-1 is only a benamidar lies in the party which sets up the benami and that the evidence adduced by the appellants is wholely inadequate. The additional issue is thus answered by the trial Court in favour of the respondent and against the appellants.
15. Turning to issue No. 1, the trial Court accepted the testimony of P. Ws. 1 to 5 and rejected the version of the appellants that the plaintiff wanted to take the suit house on lease and agreed to pay Rs. 300/- per month as rent and he paid Rs. 5,000/- as advance for carrying out repairs and for construction of compound wall. Mr. A. Pitchiah, learned Counsel for the appellants pointed out that Mr. Hanumantha Rao, Advocate, who is said to have finalised the agreement of sale Ex.A-X has not been examined and that therefore the respondent should have been non-suited. It is true that Mr. Hanumantha Rao, Advocate, has not been examined in this case. Had he been examined by the respondent, his evidence would have been assailed on the ground that he is an interested witness being the Advcoate of the respondent. I, therefore, do not see any merit in that criticism. Above, all, it is noteworthy that there is cogent and consistent evidence adduced by the respondent that the appellant Mo. 1 took Ex.A-1 agreement of sale to his Lawyer and consulted him and thereafter he executed the document. Finally, the trial Court came to the conclusion that the respondent had sent a letter under certificate of posting, which is Ex.A-2, and raised a presumption that the said letter must have reached appellant No. 1 and the failure on the part of the appellant No. 1 to explain in his evidence as to why a reply was not sent to this letter is weighed against him. As a corollary, the legal notice caused to be sent by the respondent demanding the appellant No. 1 to accept the balanceof consideration and to execute a registered sale deed and the failure of appellant No. 1 to deny the agreement of sale in question then and there is also weighed against the appellants. At this juncture it may be pointed out that appellant No. 1 sent a reply notice Ex. A-4 seeking a photostat copy of the agreement of sale and nothing more is stated therein. The trial Court, therefore, came to the conclusion that the version of the respondent that Ex.A-1 was a true and genuine document viz., agreement of sale, is probable and therefore issue No. 1 is held in favour of the respondent.
16. In addition, there is one more clinching circumstance which tilts the matter in favour of the respondent. If it is a case of lease, possession should have been handed over to the respondent as early as possible and without driving the respondent to the Court to seek possession. It is understandable that a lessee who had parted with Rs. 5,000/- advance would not have insisted upon possession being delivered then and there or at least after effecting the so-called repairs as early as possible, but on the other hand, in a case of agreement of sale handing over possession is usually postponed to a future date so as to synchronize the same with the registration of sale deed. In this case, admittedly, possession has not been delivered by the appellants. Inview of the circumstances and probabilities set out above, the trial Court' findings on additional issue No. 1 are, therefore, sustainable and fit to be confirmed. I accordingly hold that Ex.A-1 agreement of sale is true, valid and binding. Point No. 1 is answered accordingly in favour of the respondent and against the appellants.
17. POINTS NO. 2 AND 3:
Mr. A. Pitchiah, learned Counsel for the appellants contended that the trial Court did not advert to the fact whether the respondent has been ready and willing to perform his part of the contract and therefore, the judgment and decree are liable to be set aside. On the other hand Mr. C. Subba Rao pointed out that the respondent has not only intimated to the appellant No. 1 that he was ready and willing to perform his part of the contract, but he has also pleaded in so many words that he was ready and willing to perform his part of the contract, but the appellants have merely denied that averment.
18. A perusal of the judgment under appeal would show that the trial court has considered this question under issue No. 1 though briefly and querried as to why a decree for specific performance should not be granted. Then he proceeded to consider the relief sought for. It is true that in a suit for specific performance of contract it is necessary for the plaintiff to plead specifically that he was ready and willing at all points of time to perform his part of the contract and he must adduce evidence to that effect I therefore examined the material to see whether the respondent has fulfilled his duty of being ready and willing to perform his part of the contract. A perusal of legal notice Ex.A-3 shows that he has categorically informed that he was demanding appellant No. 1 to accept the balance of consideration and to execute a sale deed. In the plaint it is once again averred that he had demanded appellant No. 1 time and again to accept the balance of consideration and to execute the sale deed and more so, in a letter sent by certificate of posting Ex.A-2. It is also specifically pleaded that he has always been ready to perform his part of the contract.
19. Turning to the evidence on record, it is noteworthy that P.W.I deposed that he was always ready to pay the balance of consideration and he approached defendant No. 1 several times and requested him to execute registered saledeed and finally he got a legal notice issued on 22-11-1978 and it is Ex.A-3. It is noteworthy that there is not even a suggestion to the effect that the above version is not true. Evidently, the assertions of the respondent in this regard are not challenged. Therefore, the contention of Mr. Pitchiah that the respondent did not establish that he was ready and willing to perform his part of the contract is devoid of any merit.
20. In Ch. Ananda Rao v. Joint Collector, West Godavari, 1984 (2) APLJ 51 (SN), it is held that, "Section 16(c) of the Act no doubt is couched in a peremptory language but it is not mere catch-word nor is contention of readiness and willingness to carry to its logical conclusion in a given case. Each case has to be judged in the light of its own facts and circumstances and to find out whether the party seeking specific performance is in fact ready and willing to perform his/her part of the contract. Therefore, the omission to mention by the plaintiff of her readiness and willingness to perform her part of the contract is not by itself a ground to non-suit the plaintiff".
Even though there was no specific plea in the plaint that the plaintiff was ready and willing to perform her part of the contract it was held that it is not a ground to non-suit the plaintiff and that each case has to be judged in the light of its own facts and it has to be found out whether the party seeking specific performance is in fact ready and willing to perform his/her part of the contract. The case on hand is on a better footing in the sense that there is a specific averment in the plaint that the plaintiff has always been ready with the balance of consideration and offered to pay him several times before 1-10-1978 and through legal notice dated 22-11-1978 and he is still ready and willing to perform his part of the contract. The plaintiff asserted to that effect when he examined himself as P.W. 1 and his son-in-law who is examined as P.W.5 corroborated that version.
21. Mr .A. Pitchiah sought to place reliance upon a judgment of Delhi High Court reported in Gopal Devi v. Kanta Bhatia, . In that case one Deena Nath entered into an agreement of sale in favour of the plaintiff and accepted an advance of Rs. 5,000/- and later on it came to light that the property belonged to his mother Gopal Devi. When the plaintiff came to know of the same, he got a legal notice issued through one Inder Kandhari, Advocate, to the effect that the plaintiff was made to enter into the agreement under the false pretence and connivance with M/s. C.L. Property Dealers and thereby a sum of Rs.17,000/- was extorted from her, out of which Rs. 5,000/- was given by cheque and the balance through cash, but it has come to the knowledge that he was neither the owner of the property nor a lessee and he had a preplan to deprive her of the money and that she proposed to initiate criminal complaint against the vendor and his co-associates for criminal breach of trust for extracting moneys and before filing any such complaint, she gave him one more chance to return the sum of Rs. 17,000/- within one month of the receipt of the said notice. In view of the above notice and other correspondence between the parties, it was held that the plaintiff was not ready and willing to perform his part of the contract. Accordingly, the decree of the trial Court for specific performance of contract was set aside by Delhi High Court. I fail to understand as to how the ratio in that case is applicable to the case on hand.
22. Lastly, Mr. A. Pitchiah, pointed out that the trial Court directed the respondent to deposit the balance of consideration within one month from the date of decree, but he failed to do so and therefore he is not entitled for specifie performance of contract. He relied upon a decision reported in Sandhya Rani v. Sudha Rani, for the above proposition, wherein it is held that, "In the instant case by the terms of the contract the vendor had to put the purchaser in possession of the property when conveyance is executed and balance of consideration is paid and that was to be done by the end of April, 1956. Even though the plaintiff purchaser had failed to perform any portion of her part of the contract by the end of April, 1956, the vendor put the plaintiff in actual possession of the first and second floors of the premises to be sold on 28th April, 1956 and the plaintiff is in possession of the same till today that is after a lapse of more man 20 years. On the other hand, she deposited after struggle and procrastination the balance of consideration on 6th Feb. 1968 that is nearly 12 years after the date of agreement. The plaintiff thus enjoyed actual possession of the property from April, 1956 to Feb. 1968 when she parted with consideration without paying farthing for the use and occupation of the premises which, on a reasonable construction of the contract, she was not entitled at ail, till she parted with the full consideration and took the conveyance. The stages within which the contract was to be completed were clearly demarcated and set out in the contract itself and by the end of April,1956 the transaction was to be completed. In her anxiety to see that the transaction was completed the defendant vendor put the plaintiff in possession of a substantial portion of the property even when the plaintiff had not paid a major part of the consideration. The procrastination on the part of the plaintiff put the defendant then in such a disadvantageous position that she was forced to sell the adjacent property to raise enough money to pay off the dues in respect of the property which the plaintiff desired to purchase.
Held that the High Court was justified in refusing the decree for specific performance of the contract. While the defendant did everything within her power to meet the requests made by the plaintiff, the latter avoided performing her part of the contract under one or the other pretext and, therefore, was disentitled to a decree for specific performance".
It is further held that, "The contract was to be completed by April, 1956. It was not completed till 1957even though the defendant after satisfying the queries of the plaintiff fixed different dates on different occasions calling upon the plaintiff to complete the transaction. Thereafter plaintiff filed a suit. The suit was decreed on 30th April, 1962. The plaintiff by that decree was called upon to deposit the balance of consideration within 30 days of the date of the decree. She did not deposit the amount by the stipulated date. She asked for extension of time. In fact, it prominently appeared that the plaintiff put off performing her part of the contract presumably because she had not the necessary wherewithal to take the conveyance when she would be obliged to pay the balance of consideration and having obtained possession stuck on to it without meeting her obligation. If in this background the High Court interfered with the decree of the trial Court, there was nothing objectionable in it".
22. Mr. C. Subba Rao, learned Counsel for the respondent adverted to the facts of this case and argued that the respondent/plaintiff has always been ready with the balance of consideration and he has offered the same to appellant No. 1 several times and when there was no response from him, he got a legal notice issued to the same effect and he has also deposited the balance of consideration as per the decree and hence the above Ruling is not applicable to this case.
23. It is true that the balance of consideration has been deposited in the trial Court as per the terms of the decree. Although it is contended by Mr. Pitchiah that it was not deposited within one month of the decree, the record shows that it was in fact deposited. The order of this Court passed in CMPs 3961 and 5803/1983, dated 20-6-1983 is brought to my notice and it is shown that the respondent has been given liberty to withdraw the amount of Rs. 38,000/-deposited by him in the lower Court towards consideration with a direction to deposit the same within one month after disposal of this appeal if he succeeds in the appeal. In such a case, I fail to see any ground to show that the respondent was not ready and willing to perform his part of the contract at any point of time. With respect I hold that the ratio in supra 3, is not applicable to this case for various reasons enumerated above. Points No. 2 and 3 are answered accordingly in favour of the respondent and against the appellants.
24. In view of my findings on points 1 to 3 above and having regard to the probabilities and in view of the fact that the respondent has always been ready and willing to perform his part of the contract; I am unable to find any merit in this appeal. It is therefore liable to be dismissed.
25. Before parting with the case, it is necessary to point out that this Court already directed the appellants to deposit Rs. 150/- per month commencing from 1-7-1983 to the credit of O.S.No. 183/1978 and the successful party is held to be eligible to withdraw the said amount in C.M.Ps. No. 3961 and 5803/1983 dated 20-6-1983. I hold that the respondent in this case will be entitled to withdraw the same.
26. In the result, the appeal is dismissed with costs confirming the judgment and decree of the trial Court. The respondent is directed to deposit the balance of consideration i.e., Rs. 38,000/- within one month from today as already directed by this Court in the aforesaid C.M.Ps. The other clauses of the decree stand confirmed.