PATEL LILABEN SAKALCHAND Vs. PRAJAPATI KANTIBHAI MULJIBHAI

JUDGEMENT

(1.) THE appellant original defendant has filed this Second Appeal under Section 100 of the Civil Procedure Code challenging the judgment and order dated 2.2.2008 passed by the learned Presiding Officer, Additional District Judge, Third Fast Track Court, Mehsana in Regular Civil Appeal No.85 of 2006 confirming the judgment and decree of the Court of learned Principal Senior Civil Judge, Vijapur dated 30.11.2006 in Special Civil Suit No.4 of 2002.

(2.) IT is the case of the appellant that the appellant is the original defendant and plaintiff has filed Special Civil Suit for recovery of Rs.2,08,000/ - inter alia alleging that the defendant is having residential house in Soham Bungalows bearing House No.20 at Vijapur. The defendant is the owner, occupant and possessor of the said house. The plaintiff had given Rs.5,000/ - to the defendant on 3.2.1995 towards Earnest Money Deposit and on 4.7.1995 he had given Rs.1,40,000/ - and on 15.4.1995 he had given Rs.5,000/ - and on 30.6.1995 he had given Rs.3,000/ - and thus in all he had paid Rs.1,53,000/ - to the defendant. Against the payment of the said amount. The sale of the house was not finalized by the defendant, therefore as per the talks between the plaintiff and the defendant it was decided that the defendant should make sale of the shop No.F/2/24/A of her ownership, occupation and possession situated in Parth Shopping Centre, Govindpura Group Panchayat by executing sale deed. Since the amount has not been paid the plaintiff filed Suit and mainly relied on two documents, namely, promissory note executed on 8.2.1996 as well as agreement to sell executed on 7.2.1999. The defendant has challenged the said two documents and also challenged the signature on the said documents. After considering the oral as well as documentary evidence the trial Court has come to the conclusion that the plaintiff is entitled to recover the amount of Rs.1,58,000/ - with interest at the rate of 6% thereon. However, the prayer made by the plaintiff with regard to possession of the shop has not been granted by the trial Court.

(3.) BEING aggrieved by the judgment and decree passed by the trial Court an appeal is preferred before the learned District Judge, who vide his order dated 2.2.2008 passed in Regular Civil Appeal No.85 of 2006 modified the order of the trial Court to some extent and instead of Rs.1,58,000/ -, Rs.1,53,000/ - was ordered to be paid by the defendant to the plaintiff. It is these two orders, which are under challenge in the present Second Appeal.