RAJ SINGH Vs. HARPAL AND ORS

JUDGEMENT

(1.) Present second appeal has been preferred against the judgment and decree dated 17.01.2004 passed by District Judge, Court No. 1, Muzaffarnagar in Civil Appeal No. 211 of 1998, Raj Singh and Ors. v. Harpal Singh, partly dismissing partly allowing the appellant's appeal and partly confirming the order of trial court, Civil Judge (Senior Division), Muzaffarnagar passed in original suit No. 305 of 1995.

(2.) Brief background of the case is that original suit No. 305 of 1995 was filed with the case that the defendant No. 1 of the said suit had agreed to sell his property for a sum of Rs. 98,500/- to late Om Prakash, brother of the plaintiff and defendant Nos. 2 and 3, Jeth of respondent No. 4 and uncle of respondent Nos. 5 to 7, vide registered agreement to sell dated 04.10.1993, and as per the same the defendant No. 1 had received Rs. 50,000/- by way of advance, Rs. 41,000/- before the Sub-Registrar and Rs. 7,500/- was left to be paid. As per the plaint case Om Prakash was ready and willing to pay Rs. 7500/- and gave registered notice on 15.04.1994 asking defendant No. 1 to remain present on 03.10.1994 or 04.10.1994 at the office of sub-Registrar for the purposes of executing sale deed. Om Prakash remained present at the office of sub-Registrar but defendant No. 1 did not turn up. Om Prakash died on 25.12.1994. Thereafter, request was made by the plaintiff and the proforma defendants for execution of sale deed and in this behalf notice was given on 07.03.1995, but the defendant No. 1 did not turn up, and gave reply that there was relationship of loaner and loanee, and after 11 months, the said amount of loan (Rs. 41,000/-) was repaid to late Om Prakash with interest and further payment of Rs. 50,000/- was disputed. The prayer made in the plaint was that as per terms and conditions of the agreement to sell, direction be issued to defendant No. 1 for execution of sale deed. Alternative relief was also prayed for. Said suit was contested by the defendant No. 1 by contending that the plaintiff and the proforma defendants were not real heirs of late Om Prakash and execution of document was also disputed; the price of the property was described as Rs. 3,00,000/-, and as such there was no occasion to sell the property, and further theory of loan had been set up. It was further contended that before the sub-Registrar agreement was not read over to him and the same was an outcome of fraud and manipulation and further the amount in question had been returned back and that he is old tenure holder and has no source of livelihood. On the basis of pleadings, in all, seven issues were framed. From the side of the plaintiff, Harpal Singh, Ashok Kumar Singh and Niranjan Singh appeared as P.W.-1, P.W.-2 and P.W. -3, respectively. From the side of the defendant, Raj Singh and Prakash were examined as D.W.-1 and D.W.-2. The appellate court on 15.04.1998 decreed the suit for specific performance by directing to get the sale deed executed after accepting the balance amount of Rs. ,7500/-, failing which the plaintiff would be entitled to get the sale deed executed through court, and further decree was also passed for damages. Aggrieved against the said judgment and decree civil appeal was filed. Said appeal has been partly allowed; and the amount which had been awarded as damages had been set aside. At the said juncture present second appeal was filed.

(3.) Sri Nalin Kumar Sharma, learned Counsel for the appellant, contended with vehemence that in the present case suit could not have been decreed, as the court below has not at all considered as to whether it was a case for exercise of discretion by the court to decree the suit for specific performance in terms of Section 20 of the Specific Relief Act, the decree being inequitable, the judgment and decree passed by the courts below is liable to be set aside.