ISHAQ MOHAMMAD Vs. SHAKOOR MOHAMMAD

JUDGEMENT

(1.) THIS second appeal has been preferred by the judgment and decree passed by District Judge, Guna dated 7.2.97 whereby the decree passed by the trial Court was modified and the suit was decreed for refund of the consideration of earnest money.

(2.) THE plaintiffs filed the suit for specific performance of agreement of sale dated 1.11.90 which is said to be executed by the defendant in respect of certain agricultural land. Consideration fixed was Rs. 20,000/ -. The entire amount under consideration was paid and possession of the suit land was delivered to the plaintiffs. Plaintiffs further averred that sale deed was agreed to be executed by 1.5.92. The defendant adopted delaying tactics and did not execute the sale deed, hence after serving the notices suit was filed. The defendant filed the written statement and contended that his son was suffering from cancer and in connection with the treatment he required certain money. Plaintiff is one of his relations, i.e. sister's son as such he obtained money from him and for that an agreement was executed as a collateral security of loan advanced. Land was never intended to be sold and transaction was a loan transaction. It was submitted that the condition was also embodied to that effect in the agreement to repay the amount by 1.5.92. If the amount is not repaid, the entitlement was given to the plaintiff to get the sale -deed executed. That shows the real intention of the parties that transaction was not intended to be that of agreement of sale. It was further averred that agricultural produce worth Rs. 18, 000/ - has been given to the plaintiff and amount of Rs. 2,000/ - remained to be paid.

(3.) THE second appeal was admitted on the following substantial questions of law :