MOHD. SARDAR Vs. RAFIQ AHMED

JUDGEMENT

(1.) This Appeal from Order under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC for short) is filed by appellants (L.Rs. of original plaintiff Mohd. Sardar s/o Mohd. Umar), against the order of remand. (I will refer to Mohd. Sardar as plaintiff) Plaintiff Mohd. Sardar filed Regular Civil Suit No. 46/1999 against the respondent Rafiq Ahmad (hereinafter referred to as "the defendant") in the Court of Civil Judge, Junior Division, Sailu for specific performance of contract, which came to be decreed on 6.7.2001. The defendant filed Regular Civil Appeal No.89/2004 before District Judge, Parbhani. The Principal District Judge, Parbhani, by judgment and order dated 14.1.2009, remanded the matter to the trial Court and thus this Appeal.

(2.) In nutshell, the matter is as under : Plaintiff Mohd. Sardar brought the suit, claiming that defendant had entered into agreement of sale dated 19.8.1996 for the suit property for consideration of Rs.50,000/-. Plaintiff had paid earnest amount of Rs.20,000/-. Before this transaction, plaintiff was already cultivating the suit property on batai. After the agreement of sale, he continued the possession under the agreement of sale and entry in 7/12 extract of his cultivation was made. Defendant did not execute sale deed and did not receive balance of consideration. Defendant tried to obstruct possession of plaintiff, because of which another suit bearing Regular Civil Suit No.42/1999 was filed for injunction. Plaintiff issued notice dated 29.5.1999 to defendant to execute sale deed and on failure, filed Regular Civil Suit No.46/1999 for specific performance.

(3.) Defendant resisted the suit. He admitted that there was agreement of sale but denied giving possession under the agreement of sale. Defendant claimed that he asked plaintiff to get sale deed executed and to pay remaining amount or cancel the agreement, but plaintiff avoided.