LEELADHAR Vs. VIJAY KUMAR

JUDGEMENT

(1.) HEARD Smt. Indu Sharma holding the brief of Shri Sharad Sharma, counsel for the appellant and Shri S.K. Mandal, counsel for the respondents.

(2.) BY the present second appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 8.11.1996 passed by the Civil Judge (Sr. Division), Udham Singh Nagar as well as judgment and decree dated 6.9.2007 passed by the Additional District Judge, Nainital.

(3.) BRIEFLY stated, a suit was filed by the plaintiffs stating therein that the defendant has executed an agreement to sale in favour of the father of the plaintiffs, namely, Late Shri Deshraj with regard to the land khasra nos. 162 area 2 bigha 4 biswa, 334 area 4 bigha 4 biswa, 335 area 5 bigha 15 biswa, 336/1 area 1 bigha 12 biswa, 336/2 area 1 bigha 12 biswa, 338 area 2 bigha 8 biswa, khasra no. 335 B area 5 biswa, total 18 bigha situate at village Harlalpur, tehsil Bajpur, district Nainital on a sale consideration of Rs. 40,000/ -. The defendant has received a sum of Rs. 35,000/ - towards advance amount. The agreement to sale was registered in the office of Sub -Registrar, Bajpur on 18.2.1985. there was a condition in the sale deed that after payment of Rs. 5,000/ - by the father of the plaintiffs, the defendant shall execute the sale deed in his favour. The defendant has received remaining amount of Rs. 5,000/ - on 26.3.1985 and handed over the possession of the aforesaid land to the father of the plaintiffs. The father of the plaintiffs has requested several times to the defendant to execute the sale deed in his favour but of no avail. Therefore, the father of the plaintiff has served a notice on 20.1.1988 to the defendant to remain present in the office of Sub -Registrar, Bajpur on 15.2.1988 for execution of sale deed. The defendant has received the said notice on 25.1.1988 but the defendant has denied to execute the sale deed in favour of the father of the plaintiffs. On 16.5.1988, the father of the plaintiffs died, therefore, the plaintiffs have asked the defendant to execute the sale deed in their favour. The plaintiffs and the father of the plaintiffs were always ready and willing to get the sale deed executed in their favour but the defendant was not willing to execute the sale deed with mala fide intention, hence, the suit has been filed for a decree for specific performance of the contract.