SIRAJ NASREEN Vs. BEGUM JANI AND ORS.

JUDGEMENT

(1.) The plaintiff/appellant having lost from both the courts below, has filed the instant second appeal, assailing the judgment and order dated 8.8.2012, passed by the Additional Civil Judge Court No.2, Lucknow in Regular Suit No. 394 of 2007 and the judgment and order dated 14.2.2013, passed by the Additional District Judge, Court Civil Appeal No. 203/2012.

(2.) The case of the plaintiff/appellant is that he entered into an agreement on 28.9.1999 for sale of 1/8 share measuring 500 Sq. Ft. in House no. 395/35 situated at Kashmiri Mohalla, Police Station Saadat Ganj, District Lucknow. The agreement was registered and the sale consideration as agreed between the parties was 62,500/- and a some of Rs. 5000/- was paid as earnest money at the time of agreement. It was agreed upon between the parties that the sale deed will be executed within six months and in case the plaintiff/ appellant does not pay the remaining amount of sale consideration and does not get the sale deed executed, after payment of the balance amount of sale consideration, the agreement shall stand cancelled. When no sale deed was executed within the stipulated period, notice was issued by the appellant requiring the respondent to execute the sale deed. The notice was replied by the defendant/ respondent stating therein that her elder sister had filed a suit for partition in the court of Civil Judge, Malihabad (Senior Division) Lucknow being R.S. No. 50/2000 and as such she was not in a position to execute the sale deed. The said partition suit was decided on 21.7.2001 and thereafter an application for final decree was moved which is still pending. It was also stated by the plaintiff/appellant that he has always been ready and willing to perform his part of the contract but the defendant/respondent did not execute the sale deed within the time fixed in the agreement.

(3.) The defendant/ respondent filed her written statement before the trial court admitting factum of executing agreement but denied having received any notice issued by the plaintiff/ appellant. She again stated that as per the terms and conditions of the agreement the sale deed was to be executed within six months but the plaintiff/appellant himself did not pay the balance amount of sale consideration and as such the sale deed could not be executed and after the expiry of six months and again after a period of about 3 years from the date of agreement, the suit has become barred by limitation.