JITENDRAKUMAR NANJIBHAI MISTRYSINCE Vs. PATEL KANTILAL PARSHOTTAMDAS

JUDGEMENT

(1.) The facts are somewhat interesting, one Jeevandas who at the relevant time was residing permanently at Bombay was owning property at Ahmedabad. It is suit property. It is situated outside Shahpur Darwaja, Mehendikua Road. It is part of final plot No.109 to 112 to be precise sub plot No.10 of the said plot. The suit land is 828 sq. yards. The owner has given the suit land to one Kantilalbhai on lease for 99 years. Lease deed was executed on 16.04.1959. Lessee was to pay yearly rent of Rs.1860. The said deed also gives to lessee an option to purchase the suit property. The lessee/Kantibhai had by executing agreement to sale on 15.07.1974 had sold the suit plot to one Jitendrakumar Nanjibhai. Purchaser had paid Rs.25,000/- at the time of execution of agreement to sale towards consideration. Suit land was sold at Rs.1,85,001/-. The said agreement to sale provides to execute the sale deed within five months from the date of execution of the agreement. Parties had agreed to extend period of further for five months. However, the sale deed could not be executed even during the extended period. It is say of Jitendrakumar / purchaser that the period for execution of sale deed was further extended for a period of 2 years. Kantibhai disputes this. It is not in dispute that sale deed of suit property was never executed between the parties. But Jitendrakumar had further paid Rs.20,000/- to Kantibhai is also not in dispute. Kantibhai had given notice to Jitendrakumar for cancellation of deed on 06.05.1981. Jitendrakumar had replied to the notice. Thereafter two suits came to be filed by Kantibhai. One for cancellation of agreement to sale and other for mesne profit. Later on Jitendrakumar also filed suit against Kantibhai for specific performance. By impugned judgment, the learned trial Court decided all the suits together and was pleased to decreed the suit in favour of Kantibhai and dismissed the suit of Jitendrakumar. The present three appeals arise from these facts.

(2.) The principal defence set up by the purchaser Jitendrakumar is of part performance. It is the say of the defendant that pursuant to the execution of the agreement to sell, he was handed over possession of the suit premises in December,1975. It is also the say of the defendant that, the defendant is and was ready and willing to execute the sale deed. It is also the say of the Jitendrakumar that sale deed could not be executed due to negligence and inability on the part of Kantibhai.

(3.) Before the learned trial court, parties have examined three witnesses. Kantibhai is examined at Exh.103 and Naranbhai Tandel Kantibhai s witness is examined at Exh.110. On behalf of Jitendrakumar, one Mafatlal is examined. As stated above, learned trial court decreed the suits filed by Kantibhai and had dismissed the Jitendrakumar s suit.