SALAMATULLAH Vs. SHRI CHARITTAR DOERI

JUDGEMENT

(1.) This second appeal has been filed against the judgement and decree dated 23.8.1988 passed by Additional District and Sessions Judge, Azamgarh.

(2.) The plaintiffs filed Original Suit No. 636 of 1984 on 25.7.1984 with a relief for the specific performance of a contract, alleging that the defendant, an owner of an area admeasuring 466 kadis, after taking Rs. 4,000.00 as earnest money and after entering into an agreement to sell on 19.1975, was not executing the sale deed. The defendant denied the agreement and also raised the question of limitation, saying that the suit was barred by limitation. He also laid stress on the fact that the Suit itself was barred by Sec. 49 of the Consolidation of Holdings Act. The trial court decreed the Suit directing the defendant to execute the sale deed after receiving the remaining sum of Rs. 500.00. After the suit was decreed on 16.8.1985, the defendant filed a first appeal where it transpired that the plot numbers and their respective areas as were given out in the agreement had changed way back on 1.3.1973 and that on the day when the agreement was entered into i.e. on 19.1975, the defendant was the owner and Bhumidhar of only the plot No. 285 (area 9 kadies) and plot No. 326 (area 189 kadies) total 198 kadies, and that the defendant could be made liable only for selling 198 kadies. Consequently, after applying the provision of Sections 12(2) and 12 (3) of the Specific Relief Act, the First Appellate Court on 24.4.1986 enquired from the plaintiffs if they were ready for the transfer of 198 kadies only. To this proposal, the plaintiffs-appellants had readily agreed and had submitted their proposal before the the First Appellate Court. However, the Appellate Court on 23.7.1988 partly dismissed the appeal and partly allowed the same. While dismissing the appeal it confirmed the Trial Court's finding regarding the factum of the agreement and regarding the payment of Rs. 4,000.00 by the plaintiffs but the relief of execution of the sale deed was denied and the defendants were required to refund Rs. 4,000.00 to the plaintiffs.

(3.) Aggrieved thereof, the plaintiffs-appellants have filed the instant second appeal which was admitted on the following substantial questions of law:-