VISESHAR YADAV Vs. GOVIND SWAMI

JUDGEMENT

(1.) This is the defendant's first appeal filed u/S. 96 of the Code of Civil Procedure. It arises out of the judgment and decree dated 14-10-1993 passed by second Addl. District Judge, Bilaspur, in Civil Suit No. 3-A/1990. By the said judgment and decree, the trial Court decreed the suit for specific performance of an agreement dated 30-5-1988.

(2.) The brief facts are that the plaintiff filed a suit for specific performance of the aforesaid agreement dated 30-5-1988 allegedly entered Into between the plaintiff and defendant for sale of a house situated in Talapara, Bilaspur, for a consideration of Rs. 25,000/-. The plaintiff inter alia pleaded that after entering into the written agreement dated 30-5-1988 (Ex. P. 1), a sum of Rs. 5000/- was received as an advance by the defendant and It was agreed between them that a registered sale deed shall be executed within a period of one year from the said date, after receiving the remaining amount of consideration. The plaintiff further pleaded that thereafter on 27-10-1988, the defendant again received a sum of Rs. 13,614/- from him and made an endorsement to this effect on the back portion of the agreement dated 30-5-1988. He, thereafter, again received a sum of Rs. 1800/- from the plaintiff and in this way, he received a total amount of Rs. 20,414/-, but he did not execute the sale deed. On his refusal, the plaintiff served a notice dated 29-1-1990 and requested the defendant to execute the sale deed within 15 days from the date of receipt of notice, but even after the receipt of notice on 2-2-1990, the defendant did not turn up and in this manner, he made a breach of contract as he has declined to perform the same. The plaintiff further pleaded that he was always ready and willing to perform his part of contract, but due to non-cooperation of the defendant the sale deed could not be executed which gave rise to a cause of action to the plaintiff to institute the instant suit.

(3.) The defendant filed his written statement denying the contentions of the plaintiff. It was pleaded by him that he was not the absolute owner of the suit house as the suit house is his ancestral and joint family property and his minor sons are also the joint owners thereof. He also pleaded that there has been no partition of the said property. He further pleaded that he has never entered into any such agreement like Ex. P. 1 dated 30-5-1988 and he has never received the advance amount of Rs. 5000/- as is alleged in the plaint. He also pleaded that the suit house situates in mohalla Talapara and is a property of very high rate, therefore, question of entering into agreement to sell in sum of Rs. 25,000/- does not arise. He further pleaded that in fact, a sum of Rs. 1000/- was taken as a loan by him from the plaintiff and the plaintiff in security of the said loan got his signature on a blank stamp paper and it appears that thereafter, the contents of the alleged agreement have been typed over the said document by the plaintiff in collusion with other persons. About the allegations of again receiving the amount Rs. 13,614/- on 27-10- 1988, the defendant pleaded that in fact, he used to play Chits (Beecees) and some amount was needed for it and it was agreed between them that periodically needed amount of Beeces shall be paid by the plaintiff and when the return amount of Beecee shall be received to the defendant, the plaintiff shall retain his amount and the balance would be paid to him and on this only, he had put his signature on the said document. About Rs. 1800/-, he pleaded that he has never taken any such amount from the plaintiff as is alleged in para 4 of the plaint. It is stated that the entire amount taken by him has been repaid to the plaintiff.