SARDAR Vs. IDRIS AHMAD

JUDGEMENT

(1.) -This is defendant's appeal under Section 96 of C.P.C. against the judgment and decree dated 19.8.1977 passed by the First Additional District Judge, Shahjahanpur in O.S. No. 19 of 1976 whereby it decreed the suit for specific performance of an agreement to sell.

(2.) O.S. No. 19 of 1976 was instituted by the plaintiff respondents on the pleas inter alia that the plaintiff agreed to sell four plot Nos. 356A, 312, 356B and 366 total area admeasring 7.59 acres for a sum of Rs. 23,000 situate in village Fatehpur Bujurg, Pergana and Tehsil Tilhar, district Sahjahanpur. A registered sale agreement dated 28.6.1974 was arrived at between the parties and a sum of Rs. 5,000 was given to the defendant at the time of execution of the agreement, Rs. 2,000 at the time of the registration of the agreement and it was agreed upon that the balance amounting to Rs. 18,500 would be payable at the time of the registration of the sale deed. 10.1.1975 was the date fixed for the execution of the sale deed. It so happened that the defendant could not obtain Bhumidhari Sanad in respect of these plots and therefore another registered agreement dated 20.12.1974 was executed and the period for execution of the sale deed was extended up to 10.1.1976. The defendant having failed to execute the sale deed inspite of notice dated 27.12.1973 as also in pursuance of oral requests, suit for specific performance of contract to sell dated 20.12.1974 was filed and in the alternative a relief for refund of Rs. 4,500 was claimed.

(3.) THE plaintiff examined himself in respect of his case as P.W. 1 and the defendant examined himself as D.W, 1. He also examined one Lt. Col. M. K. Shahi as D.W. 2 and Chhotey Lal D.W. 3 in support of his case with regard to the payment of Rs. 10,000 to the plaintiff and the cancellation of the registered agreement in question. THE trial Judge decided the issues No. 1 and 3 together. THE trial Judge has found that the plaintiff did not enter into an agreement relinquishing his right under the agreement in question. THE agreement in question was not obtained by fraud, as pleaded by the defendant and the plaintiff was always ready and willing to get the sale deed executed. THE finding with regard to the payment of earnest money amounting to Rs. 4,500 was also recorded in favour of the plaintiff and the suit was decreed.