SUMAN TEWARI Vs. SAHDEVA PATHAK

JUDGEMENT

(1.) THIS Second Appeal, under Section 100 of the C.P.C., has been preferred against the judgment and decree dated 27.9.1996, passed by II Additional District Judge, Haridwar in Civil Appeal No. 24 of 1991 thereby partly allowing the appeal and setting aside the judgment and decree passed by Additional Civil Judge, Roorkee in O.S. No. 187 of 1989.

(2.) THE brief facts of the case, giving rise to this appeal, are that the plaintiff/respondent No. 1 Sahdev Pathak filed a suit against Smt. Suman Tiwari (appellant/defendant) and Jagannath defendant/ respondent No. 2) for specific performance in the agreement. According to the plaintiff, the defendant Jagannath is the owner of the suit property and he entered into an agreement to sell the said property to the plaintiff on 4.7.1986 for a sale consideration of Rs. 25,000/ -. As per the terms of agreement the defendant Jagannath received Rs. 20,000/ - as advance from the plaintiff Sahdev Pathak, and the plaintiff had always been ready and willing to purchase the property on payment of balance sale consideration, but the defendant No. 1, as per the agreement, did not execute the sale deed, hence the plaintiff sent notice to the defendant No. 1 to be present before Sub Register on 2.7.1987 for execution of the sale deed but the defendant did not reach there. According to the plaintiff, on 15.4.87 the defendant No. 1 against the terms of the agreement sold out the suit property to defendant No. 2 Smt. Suman Tiwari, whereas Smt. Suman Tiwari had knowledge of the sale agreement of the disputed property between the plaintiff and the defendant No. 1.

(3.) THE defendant No. 1 contested the suit by filing his W.S. denying any sale agreement between him and the plaintiff. According to him in the year 1986 he fell in need of money as marriage of his daughter was to be performed. He took loan from the plaintiff and the plaintiff asked him to write document in lieu of loan amount. The plaintiff deceived him and executed agreement. The contents of the agreement were not read over to him and the defendant put his signatures on the said document in good faith. It is also alleged that the defendant has returned the loan taken by him from the plaintiff.