OMBIR SINGH Vs. DESHPAL AND 3 OTHERS

JUDGEMENT

(1.) Plaintiff-appellant has filed Original Suit No. 70 of 2007 for specific performance of contract pursuant to the agreement to sell dated 14th of Feb., 2005. Another Suit No. 10 of 2007 had been filed by the defendants to the present appeal for cancellation of the agreement to sell dated 14th of Feb., 2005. Both the suits were consolidated together and the Original Suit No.70 of 2007 was decreed and Original Suit No. 10 of 2007 has been dismissed. Thus aggrieved, appeals were filed by the defendant to the Original Suit No. 70 of 2007, which has been allowed by the lower appellate court and the judgment and decree of the trial court has been set aside. As a consequence, suit for cancellation of agreement to sell No. 10 of 2007 has been decreed and the suit for specific performance has been rejected. The lower appellate court, however, has granted alternative relief for return of amount along with interest exercising its jurisdiction under sections 20 and 22 of the Specific Relief Act. Aggrieved by the judgment and decree of the lower appellate court, plaintiff of Original Suit No. 70 of 2007 has filed two appeals, which have been heard together on the question of admission.

(2.) Learned counsel for the appellant submits that the agreement to sell was registered and there would be a presumption in the eyes of law with regard to correctness of the averments contained therein. Submission is that once the agreement to sell had clearly mentioned that a sale deed is to be performed pursuant to the agreement dated 14th of Feb., 2005, it was not open for the defendant to file the suit for cancellation of it or to resist the suit for specific performance. Learned counsel also submits that grant of alternative relief of return of earnest money is illegal, inasmuch as mere making of a prayer for grant of alternative relief would not justify grant of such prayer.

(3.) Learned counsel for the defendant in Original Suit No. 70 of 2007 contends that in fact, no agreement to sell was executed, inasmuch as the defendant had taken a loan of Rs. 1,50,000.00(rupees one lac fifty thousand), which was to be returned along with the interest after two years and for the security of the transaction, the document had been executed and that infact, no agreement had been entered into by him for executing the sale deed. It is submitted that only when a notice for executing the sale deed was issued by the plaintiff that the defendant came to know about the execution of agreement to sell and immediately thereafter a suit for cancellation of the agreement to sell has been filed, which has rightly been allowed on the basis of evidence and materials available on record.