MAHIBOOBSAHEB KUJRUKSAHEB HARKARE Vs. YAKUBSAHEB SAIFANSAHEB QURESHI

JUDGEMENT

(1.) This Second Appeal arises from the decree for specific performance passed by the learned 2nd Joint civil Judge, Junior Division at Solapur in Regular civil Suit No. 713 of 1980 on 21/3/1987 and duly confirmed by the learned Additional District Judge at solapur vide his judgment and order dated 8/3/1991 by which Civil Appeal No. 390 of 1987 came to be dismissed. While admitting the Second Appeal this court framed the substantial question of law as under: "whether the discretion to decree specific performance has been properly exercised. "

(2.) Admittedly the suit property viz. Municipal house No. 819 located in City Survey No. 4617 of solapur city admeasuring 29 sq. yards was agreed to be sold to the plaintiffs by the defendants (present appellants) vide the agreement for sale dated 6/2/1980 (Exh. 4/2) for consideration of Rs. 18,000/-and an amount of Rs. 8,000/- from the said consideration was already paid to the defendants when the agreement was signed. As per the said agreement the balance amount of Rs. 10,000/- was payable on signing the sale deed within a period of one month on obtaining the legal permissions. The defendants obtained the permissions under the Urban Land (Ceiling and Regulation) Act, 1976 on 2/4/1980 and the same was handed over by the defendants to the plaintiffs. However, the defendants did not respond to take steps to sign the sale deed within thirty days from obtaining the said permission, as alleged by the plaintiffs. The plaintiffs, therefore, issued a legal notice dated 13/4/1980 and the same was replied to by the defendants on or about 23/4/1980. The suit was filed before the trial Court on or about 14th July 1980. The defendants filed the written statement at Exhibit 13 and opposed the suit on the ground that the agreement for sale dated 6/2/1980 was conditional and unless House No. 815, Shukrawar Peth, solapur, which was in occupation of the plaintiffs was handed over to the defendants, the suit house no. 819 could not be transferred by signing the sale deed with the plaintiffs and as per the defendants such a condition was by way of further agreement. 2a. On behalf of the plaintiffs, Plaintiff No. 1 -Yakubsaheb Qureshi came to be examined as PW 1 and abdul Hamid Abaji came to be examined as PW 2 whereas for the defendants, Defendant No. 1 appeared as DW 1, sayad Ahmed Khan as DW 2 and Harun Qureshi as DW 3. The trial Court examined the oral as well as documentary evidence as adduced by both the parties and the scheme of Section 92 of the Evidence Act, 1872 and held that the plaintiffs had proved that the agreement for sale was signed by the defendants by accepting the earnest amount of Rs. 8,000/-, the defendants had denied to execute the sale deed as agreed and, therefore, the plaintiffs were entitled for specific performance as sought for. The operative part of the decree reads as under:

(3.) The lower Appellate Court reconsidered the evidence adduced by both the parties in the appeal filed by the defendants and confirmed the findings recorded by the trial Court including the findings on the issue of comparative hardship under Section 20 of the Specific Relief Act, 1963.