SAHEBAL RASULKHAN PATHAN Vs. NANUBI KASIMSAHEB SHAIKH

JUDGEMENT

(1.) This second appeal arises out of a suit filed by respondent Mhanubi Kasimsaheb Shaikh, original plaintiff for getting specific performance of a contract of sale Exh. 34 dt 17th Aug., 1970. It was the case of the plaintiff that the property sold was a house situated at Siddeshwar peth, Solapur and the terms of the contract were reduced into writing. It was stated into writing. It was stated that Rs. 4,000/- were fixed as the sale price and Rs. 2,000/- were to be paid at the time of agreement as earnest money. It was also agreed that the sale-deed was to be executed with in a week from the date on which the said agreement was to be executed. It was further averred by the plaintiff that under the said agreement Exh. 34, two rooms were given in possession of the plaintiff on Aug., 17, 1970, The plaintiff stated that at the time of filing of the suit she was not in possession because she alleged that on 24th of Aug. 1970, the defendant took possession of the said two rooms. The plaintiff preyed for specific performance of the contract Exh. 34 and in the alternative, she also prayed for decree of Rs. 2,000/- which were paid by her as earnest money, In case, the contract is not accepted.

(2.) The defendant filed his written statement at Exh. 15 and his principal defence was that the alleged transaction of the sale was not truly refiected in te documents but in fact the alleged transaction was only in the nature of loan transaction. The plaintiff does not possess any money lending license. Though carries on the transaction of money lending. She has earlier entered into such transaction with defendant in the year 1968 and therefore dafendant stated that the alleged agreement not being an agreement of sale, the suit is liable to be dismissed.

(3.) The learned trial Judge framed necessary issues, which are as follows;-