MANOHAR PAMANDAS JANI Vs. MADHUKAR TRIMBAK WAYCHAL

JUDGEMENT

(1.) By this appeal filed under Section 100 of the Code of Civil Procedure, 1908, the appellant (original plaintiff) has impugned the 5th August 2015 passed by the learned judgment and decree dated District Judge-5, Solapur dismissing the Regular Civil Appeal No.299 of 2014 and upholding the judgment and decree dated 22nd January 2014 passed by the Civil Judge, Senior Division, Solapur dismissing the Regular Civil Suit No.663 of 2012 filed by the appellant herein inter alia praying for specific performance of an agreement to sale dated 17 th October 1995. The parties are described as per their original status in the suit before the trial Court. Some of the relevant facts for the purpose of deciding this second appeal are as under :-

(2.) It was the case of the plaintiff that the defendant no.1 was indebted to the Bank of India and was in need of money and thus decided to sell his immovable property bearing Gat No.55 to the extent of 11529 sq.mtrs and the land admeasuring 8839 sq.mtrs. out of Gat No.53/6/2 for total consideration of Rs.7,50,000/- i.e. Rs.1,50,000/- per acre and a shed existing in Gat No.53/6/2 for Rs.50,000/-. It was the case of the plaintiff that the total consideration agreed by the parties in respect of the aforesaid property was of Rs.8 lakhs. According to the plaintiff, on 17 th October 1995, the plaintiff and the defendant no.1 entered into an agreement to sale in respect of the aforesaid properties. The defendant no.1 accepted Rs.1 lakh from the plaintiff under the said agreement and also handed over the possession of the suit property to the plaintiff. According to the plaintiff, the said sale transaction was to be completed within 11 months i.e. by September 1996. The defendant no.1 alleged to have demanded Rs.4 lakhs from the plaintiff in the month of November 1995 towards remaining consideration. It was the case of the plaintiff that the plaintiff paid sum of Rs.4 lakhs to the defendant no.1 on 18th November 1995 who acknowledged the said amount on the agreement to sale. The defendant no.1, however, did not pay the bank loan and did not complete the sale transaction within 11 months in favour of the plaintiff.

(3.) It was the case of the plaintiff that the plaintiff insisted to cancel the agreement and called upon the defendant no.1 to return back the amount paid by the plaintiff. The defendant no.1 made a proposal that to compensate the delay in execution of sale deed, he would execute sale deed of the entire Gat No.55 admeasuring 15372 sq.mtrs. instead of 11529 sq.mtrs. The plaintiff alleged to have accepted the said proposal and paid additional amount of Rs.1,50,000/- to the defendant no.1. It was the case of the plaintiff that on 6 th January 1997, the defendant no.1 executed sale deed of the entire Gat No.55 admeasuring 15372 sq.mrts. in favour of the plaintiff.