VISHNU Vs. ABDULGANI

JUDGEMENT

(1.) This is a plaintiff's second appeal against the concurrent findings recorded by the Courts below that the plaintiff is not entitled to decree of specific performance and is only entitled to decree of recovery of money paid under the agreement of sale. In fact, the defendant has also filed cross-objections challenging the findings of the Courts below regarding the proof of execution of the agreement of sale and payment of consideration under the agreement of sale. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

(2.) The subject matter of the suit is the nonagricultural land comprised in CTS No. 2093/B measuring 2889.10 sq. mtrs. situated in Ayodhya Nagar within the limits of Hubli-Dharwad Municipal Corporation in CTS Ward No. 5. Prior to its conversion, the schedule property was a part of the southern portion of R.S. No. 16 measuring 29 guntas. For short, the said property is referred to as 'the schedule property.'

(3.) Defendant is the owner of agricultural land bearing schedule property. He was interested to sell the schedule property and the plaintiff was willing to purchase the same. The terms of sale and purchase of the schedule land was settled between the parties, the price was fixed at Rs. 8,000/-. On 07.02.1974, the defendant executed the agreement of sale in favour of the plaintiff. Under the agreement of sale, a sum of Rs. 4,000/- was paid as earnest money in cash. On the date of execution of the agreement of sale, on receipt of Rs. 4,000/-, defendant was to hand-over the physical possession of the schedule property to the plaintiff. The defendant agreed to accept the balance consideration of Rs. 4,000/- from the plaintiff at the time of executing the registered sale deed in favour of the plaintiff before the Sub-Registrar, Hubli. On 10.06.1974, the defendant received a sum of Rs. 2,000/- in cash from the plaintiff in terms of the agreement of sale. The said receipt of Rs. 2,000/- was duly acknowledged in the very agreement itself. The remaining balance of Rs. 2,000/- was received by the defendant on 08.12.1974 which is also duly acknowledgment by the defendant in the agreement of sale itself.