RAM GIRI Vs. RAGHUVIR SINGH

JUDGEMENT

(1.) Heard Mr. B. Malik, learned counsel, as-sisted by Mr. Amit Malik, learned counsel for the defendant-appellant and Mr. Rishikesh Tripathi, learned counsel for the plaintiff-respondent.

(2.) Brief facts of the case are that plaintiff-respondent No. 1 filed a suit for specific performance of agreement dtd. 5/9/2003 against the defendant-ap-pellant which was registered as Original Suit No. 602 of 2005. In the plaint it was alleged that agreement dtd. 5/9/2003 was entered into between the plain-tiff and defendant for sale of 1/2 share of khasara No. 1411, area 2.326 hect. for consideration of 2,60,000/- and 2,48,000/- was paid as earnest money before the Registrar and remaining 12,000/- was to be paid at the time of execution of sale-deed. The time period for execution of sale-deed mentioned in agreement to sell was 1 year. The defendant has filed his written statement, stating that he was in need of 2,00,000/- for his personal work but he never intended to sell his property as plot No. 1411 is the only source of maintenance of his family. Before the trial court, 7 issues were framed. The parties have adduced oral and documentary evidence in support of their cases. The trial court while deciding issue Nos. 1, 3 and 7, has recorded finding that valid agreement to sell dtd. 5/9/2003 was executed between the plaintiff and defendant but defendant has not executed the sale-deed in favour of plaintiff, hence, the suit for specific performance has been rightly filed on behalf of the plaintiff. The trial court while deciding the issue No. 2, relating to readiness and willingness, has recorded finding that plaintiff was always ready and willing to perform his contract in pursuance of agreement to sell dtd. 5/9/2003. The trial court vide judgment and decree dtd. 7/2/2011, decreed the plaintiff's suit for specific performance of contract and directed the defendant to execute the sale-deed within a period of one month in pursuance of agreement to sell dtd. 5/9/2003 after get-ting the balance consideration from the plaintiff. Against the judgment and de-cree of the trial court dtd. 7/2/2011, civil appeal was filed before the District Judge and the same was registered as Civil Appeal No. 46 of 2011. The aforementioned appeal was heard by the Additional District Judge, Court No. 13, Agra. In the aforementioned civil appeal, three points of determination were framed by the court. The 1st appellate court considering the finding recorded by the trial court, has held that agreement to sell dtd. 5/9/2003 (paper No. 9-Ka) was rightly executed between the plaintiff and defendant and the plaintiff was always ready and willing to perform his contract in pursuance of the agreement to sell dtd. 5/9/2003. The 1st appellate court has also taken into consideration the provisions of Sec. 20 of the Specific Relief Act and has held that decree for specific performance has been rightly granted by the trial court in pursuance of the agreement to sell dtd. 5/9/2003. The 1st appellate court vide judgment and decree dtd. 18/2/2022 dismissed the civil appeal filed by the defendant. Hence, this second appeal on behalf of the defendant for the following relief:-

(3.) The following substantial questions of law have been framed by the appellant in the memorandum of instant second appeal:-