GOKARAN ALIAS BHONDU Vs. CHHOTEY LAL

JUDGEMENT

(1.) Case called out in the revised list. Counsel for the respondent is not present. Heard learned Counsel for the appellants.

(2.) The appeal has been filed challenging the judgments and decree dated 6.1.1998 and 15.1.1998 passed by the Appellate Court. The facts giving rise to the present appeal are that an agreement to sell, which is alleged to have been executed on 25.6.1981, a limitation for a period of one year was given for execution of the sale-deed. Since the defendant failed to execute the sale-deed, a suit for Specific Performance of Contract was filed. The Trial Court dismissed the suit and thereafter an appeal was filed by the plaintiff and the Appellate Court proceeded to allow the appeal. Hence this appeal.

(3.) Submission of learned Counsel for the appellants is that appeal has been allowed merely on the clarification, which was obtained by the Court under Order X, Rule 2, C.P.C. and that was made the basis for allowance of the appeal, whereas the defendant has specifically stated in his written statement that the agreement to sell was executed on 10.10.1979 for a consideration of Rs. 12,500/- and a deed of re-conveyance was executed on the same day, which was duly authenticated by witnesses, Ganga Prasad and Bachaule with a condition that as soon as the amount would be returned, the land will be returned back to the defendant. Ganga Prasad happens to be the Clerk of the plaintiff, who was an Advocate. However, this fact was denied by the plaintiff in his replication, but when he appeared in the witness box, he did not deny the aforesaid fact.