MOHD ASLAM Vs. RAIS

JUDGEMENT

(1.) BOTH the above -titled appeals have arisen out of the common impugned judgment dated 3.12.2013, so are being adjudicated together herein below.

(2.) BEFORE coming to the real issues, it would be pertinent to remind the backdrop of the controversy between the parties which was arisen out of the execution of the registered agreement to sale without possession by the original owner Mohd. Aslam on 28.2.2005 in favour of the plaintiffs. The land was of Khata No. 131, Khasra No. 332, area 0.788 hectare situated in Village Mukkarabpur, Pargana Roorkee. The earnest money rupees one lakh was paid by the purchasers/plaintiffs to Aslm and the total consideration was Rs. 1,30,000/ -. Thus, remaining Rs. 30,000/ - had to be paid at the time of execution of sale deed at any time within two years i.e. till 1.3.2007. The plaintiffs before the expiry of two years, as aforestated, issued a notice dated 15.11.2006 asking Mohd. Aslam to keep himself present in the concerned registry office on 30.11.2006 and to execute the sale deed. That notice was not even replied by Mohd. Aslam, much less putting his presence as asked. So, the prospective purchasers instituted the Original Suit No. 24/2007 on 3.2.2007 seeking specific performance of agreement in question.

(3.) THE suit was resisted by Mohd. Aslam mainly on two grounds. The first ground was that the true nature of the agreement in question was not, in fact, to sell the property, but it was a mortgage deed and got executed by the plaintiffs from the defendant Aslam taking the advantage of his constraints of the dire need of money.