VIJAY THADANI Vs. ITWARI

JUDGEMENT

(1.) This is plaintiff's appeal under Section 96 of the CPC challenging the judgment and decree passed by the Trial Court dismissing his suit for specific performance of agreement dated 25/11/2004 in respect of 1.28 acres of agricultural land situated at Village- Kesla, Tahsil- Bilha, District- Bilaspur (C.G.).

(2.) Facts of the case, briefly stated, are that defendant/respondent No.1 had executed the subject agreement for the suit land in favour of the plaintiff at the rate of Rs. 3,00,000/- per acre, totaling to Rs. 3,84,000/-. Out of which, Rs. 11,000/- was paid in cash as earnest money on the date of agreement itself. The agreement also stipulated that the demarcation of the land shall be carried out by the seller and if the land is found less on the spot, the payment shall be made for the area actually available. When defendant No. 1 did not execute the sale deed by February, 2005, as stated in the agreement, the plaintiff served a legal notice dated 25/06/2005, which was received by defendant No. 1 on 02/07/2005. However, even before that period, defendant No. 1 had executed a sale deed of the suit land for total sale consideration of Rs. 50,000/- in favour of defendant No. 3 on 30/05/2005. According to the plaintiff, he was always ready and willing to perform his part of the contract, but defendant No. 1 did not take interest in performing his obligation as he did not make any effort to get the land demarcated and to execute the sale deed in favour of the plaintiff and instead thereof he sold the land to defendant No. 3, therefore, the plaintiff is entitled for a decree of specific performance as also for cancellation of the sale deed executed by defendant No. 1 in favour of defendant No. 3.

(3.) The suit was defended by defendant No. 1 on the averment that despite repeated requests, the plaintiff did not take interest in payment of balance sale consideration nor he remained present for demarcation of the land and since he was in need of funds to meet out the expenses of his daughter's marriage, he executed the sale deed in question in favour of defendant No.3.