MUHAMMED SHEREEF Vs. SOMA RAJAN

JUDGEMENT

(1.) The respondent who was the defendant in the Court below agreed to sell 29 cents of land belonging to him to the appellant herein for a total consideration of Rs. 1,50,000/-. On the date on which he executed Ext. A1 agreement, viz., 2.4.1984 he also received from the appellant a sum of Rs. 30,000/- as advance. The conditions mentioned in Ext. A1 are that the property would be measured to convince the plaintiff of the actual extent and also that the respondent would clear an outstanding encumbrance in favour of a Bank before executing the sale deed. The suit was laid alleging that inspite of Ext. A2 notice wherein demand had been made that the respondent would turn up in the Sub Registrar's Office concerned to receive the balance sale consideration and to execute the sale deed on 5.10.1984, the respondent did not turn up. The suit was thus laid alleging violation of the agreement on the part of the respondent and seeking return of the advance amount of Rs. 30,000/-.

(2.) The Court below, on the strength of the evidence of PWs 1 to 3, DWs 1 and 2, Exts. A1 to A3 and B1 to B6 found that the appellant has failed to prove that he had sufficient funds for payment of the balance amount and that actually the breach of the agreement was on the part of the plaintiff himself. Consequently the suit was dismissed.

(3.) The learned counsel for the appellant submitted that there is no acceptable evidence to conclude that the respondent fulfilled the two conditions mentioned in Ext. A1, viz. to convince the plaintiff of the actual extent and to clear the encumbrance outstanding in favour of the Bank and in the circumstances, the breach was definitely on the part of the respondent justifying refund of the advance amount. It was also argued that the Court below erred in accepting the respondent's contention that subsequent to Ext. A1 the appellant himself represented to the respondent that he would clear off the dues to the Bank subject to the condition that the said amount would be adjusted against the balance of sale consideration due to the respondent. It is pointed out in this regard that S.92 of the Indian Evidence Act is a clear bar to the acceptance of the said defence contention because the oral evidence adduced in that regard before the court below was in effect to vary the written terms embodied in Ext. A1 and that no such oral evidence in deviation of the written terms should have been allowed.