VISHRAM SHUKLA Vs. RAJDEI

JUDGEMENT

(1.) LIST revised. In spite of sufficient service as per office report dated 20. 9. 2007, no one has appeared on behalf of respondents. Heard learned Counsel for the appellant.

(2.) THIS is a plaintiff's second appeal arising out of O. S. No. 529 of 1988. The suit was filed for specific performance for agreement for sale and was decreed on 3. 12. 1991 by Civil Judge, Allahabad. Against the said judgment and decree, defendants-respondents filed Civil Appeal No. 197 of 1992, IIIrd A. D. J. , Allahabad allowed the appeal and set aside the judgment and decree passed by the Trial Court through judgment and decree dated 17. 11. 1994 giving rise to the instant second appeal. At the bottom of the memorandum of second appeal, four substantial questions of law were stated by the appellant. This appeal was admitted on 3. 10. 2007 on substantial questions of law No. (i), (ii) and (iv), which are quoted below :-

(3.) ACCORDING to the plaint allegations, defendants executed a registered agreement for sale on 15. 7. 1986 in respect of agricultural property admeasuring two bighas five biswas for a consideration of Rs. 60,000/- after receiving Rs. 35,000/- as earnest money. Initially, the land in dispute along with some other agricultural land belonged to Kewal Prasad, who had sold the land in dispute to the defendants on 29. 5. 1986. The defence taken was that defendants intended to execute agreement for sale of only 1/3 of the land in dispute in favour of Daya Shanker real brother of husband of defendant No. 1 and real brother of defendant No. 2 Girija Shanker. It was also stated that they intended to execute the agreement after receiving Rs. 3500/- as earnest money out of total agreed sale consideration of Rs. 9,000/ -. However, plaintiff, who was their near relation got the sale deed executed in his favour taking advantage of illiteracy of defendants. It was also stated that defendants did not receive Rs. 35,000/ -. Trial Court found that the agreement was, in fact, executed after receiving rs. 35,000/- by the defendants.