THAKUR SINGH AND OTHERS Vs. BHIM SEN

JUDGEMENT

(1.) THIS appeal, preferred under Sec­tion 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 20-06-1995, passed by first appellate court (IInd Additional District Judge, Nainital), whereby said court has dismissed the Civil Appeal No. 34 of 1993, affirming the judg­ment and decree dated 16-03-1990, passed in Original Suit No. 76 of 1987, by the trial court (Civil Judge, Nainital). The trial court decreed the suit for specific performance of con­tract in favour of the plaintiff, which is affirmed by the first appellate court.

(2.) HEARD learned counsel for the parties and perused the Lower Court Record.

(3.) DEFENDANT Sewa Singh (since deceased) filed written statement and contested the suit. He admitted that he had received Rs. 12, 500/- by 15-05-1985, Rs. 11, 000/- on 23-01-1986 and Rs. 6, 000/- on 12-01-1987. However, it is pleaded in the written statement that the answering defendant had taken loan of the aforesaid amount from the plaintiff and the deed, which is being pleaded as agreement for sale was in fact nothing more than a secu­rity for repayment of loan. It is further pleaded by the answering defendant that the value of the land in suit is about Rs. 1, 00, 000/- and the said land is not exclusively owned by the defendant Sewa Singh, as Bachan Singh son of Tahal Singh, was also a co-tenure holder who had an un-partitioned share in the land. It is further pleaded by the answering respondent that without permission of the Collec­tor the answering defendant had no right to transfer the land. It is also pleaded that plaintiff does not possess the money lender's license. Lastly, it is pleaded by the defendant that he is ready to pay the amount taken on loan in installments. (It appears that dur­ing the pendency of the first appeal original defendant Sewa Singh died and his legal heirs Thakur Singh, Kulwant Singh and Amrik Singh were substituted, who have filed this second appeal).