JOSE K PETER Vs. PAULSON PETER

JUDGEMENT

(1.) The appellant and the respondent are brothers. The suit filed by the latter for specific performance for sale in respect of two items of properties described in the schedule has been decreed in part by the trial court. The decree is challenged.

(2.) Plaint A and B schedule properties belong to the appellant . The respondent filed the suit on the allegation that on 4.3.1994 he and the appellant entered into an agreement by which the latter agreed to sell the former the plaint A schedule property for Rs.1, 75, 000/- and the plaint B schedule property for Rs.3, 00, 000/- and on the date of the agreement the latter put the former in possession of the property and the former paid Rs.75, 000/- and later Rs.1, 00, 000/- in four instalments towards the sale consideration of the plaint A schedule property. The respondent allegedly paid Rs.2, 00, 000/- in three instalments towards the sale consideration of plaint B schedule property. But the appellant refused to perform his part of the contract by executing sale deeds. In the written statement the appellant denied that he entered into an agreement with the respondent for sale of the plaint schedule properties and received the amounts mentioned in the plaint towards the sale consideration. He also denied that he put the respondent possession of plaint A schedule property pursuant to the agreement. According to the appellant, there was an agreement between him and the respondent for sale of 1 Acre out of the plaint B schedule property for Rs.Four lakhs and he received from the respondent Rs.Fifty thousand on 5.6.1994 towards the sale consideration. The transaction had to be completed on or before 1.6.1995. Out of the balance sale consideration the respondent paid the appellant Rs.1, 20, 000/- in several instalments. The respondent was not ready to perform his part of the contract by paying the balance sale consideration and so the transaction could not be completed.

(3.) The trial court entered a finding that there was an agreement between the parties as alleged in the plaint and the appellant received from the respondent Rs.2, 45, 000/-, but there was no evidence to prove the sale consideration agreed by the parties in respect of the plaint B schedule property. Accordingly, it granted a decree for specific performance in respect of the plaint A schedule property but refused to grant a decree in respect of plaint B schedule property. It directed the appellant to execute a sale deed in favour of the respondent in respect of the plaint A schedule property. It also directed him to refund to the respondent Rs.70, 000/- out of the total amount of Rs.2, 70, 000/- he received from the respondent. The appellant challenges the decree.