RAM PRATAP AND ORS. Vs. GULAB

JUDGEMENT

(1.) The instant second appeal has been preferred against the judgment and decree dated 01.10.1993, passed by learned First Additional Civil Judge, Bahraich, in Civil Appeal No. 2 of 1991, by which the Regular Civil Appeal was allowed and the judgment and decree dated 18.11.1989, passed by learned Vth Additional Munsif, Bahraich, in Original Suit No. 135 of 1985 has been set aside.

(2.) Brief facts of the case are that the appellants filed suit for specific performance of contract relating to plot no. 177/178 situated in Village Majhaw, Pargana Dharamapur, Tehsil Nanpara, District Bahraich, of which the defendant was bhumidhar. The said land was purchased by the defendant in auction from Cooperative Department vide sale deed dated 26.3.1982. At the time of purchase the defendant has obtained Rs.1500.00 from the plaintiffs on the condition that he shall execute the sale deed of one acre of land so purchased in favour of the plaintiffs and registered agreement dated 26.3.1982 was executed between the parties. In furtherance of the execution of sale deed the defendant has delivered possession over one acre of land to the plaintiff and, as such, the defendant is bound to execute the sale-deed for which the plaintiffs have already been ready and are ready to perform their part of contract. Since the defendant did not execute the sale-deed. Hence, the suit was filed. The defendant has admitted that he has purchased the disputed property in public auction in the year 1981 and the sale-deed in favour of the defendant was executed on 26.03.1982. But, it has been pleaded that the defendant is an illiterate person and he has accompanied the plaintiffs as witnesses, who got the fictitious agreement executed which came to notice of the defendant, when he received the notice sent by the counsel for the plaintiffs; the defendants are not in possession over the disputed property and, as such, the suit is barred by Sec. 34 of the Specific Relief Act. In the replication, the plaintiffs have alleged that the defendant is an illiterate person. In view of the pleadings of the parties, the learned Trial Court framed issues, the parties led their evidence. After conclusion of hearing, the learned Trial Court decreed the plaintiffs' suit and the defendant was directed to execute the sale-deed in favour of the plaintiffs within two months. The defendant preferred the Civil Appeal No. 02 of 1991. Learned First Appellate Court has re-assessed the evidence in a detailed manner and has concurred with the findings of the learned Trial Court which have not been challenged before this Court as on point of facts, there is no dispute between the parties.

(3.) The learned First Appellate Court has held that by directing the decree for specific performance of Contract, there has been violation of law as provided under Sec. 168 (A) of U.P.Z.A. & L.R. Act and, as such, it has dismissed the suit for specific performance of contract and has decreed the suit for refund of earnest money together with interest at the rate of 12 per cent per annum. Aggrieved by the aforesaid decree, the plaintiffs have preferred this appeal.