ABDUL HANEEF Vs. MOHD SEHJAD

JUDGEMENT

(1.) INVOKING appellate jurisdiction of this Court under Section 96 of the Code of Civil Procedure, the appellant has filed this appeal calling in question the validity, legality, propriety and correctness of the judgment and decree dated 31-1-92, passed by IV th Additional District Judge, Sagar, in C. S. No. 31-A/91 decreeing the plaintiffs' suit for specific performance of the contract to the extent of half portion of appellant/defendant No. 2 and for refund of Rs. 2,750/ -.

(2.) THE facts leading to the filing of this appeal, shortly narrated, are that the respondents/plaintiffs filed a suit for specific performance of the contract against the appellant and his brother Abdul Majid alleging that the defendants in the month of September, 1983 came to Sagar and entered into an agreement with the plaintiff for sale of their house for a consideration of rs. 31,500/ -. They demanded a sum of Rs. 18,500/- as advance money but the plaintiffs were not having that much money, therefore, they offered the defendants to take some amount in the form of earnest money. The defendants insisted for the payment of Rs. 18,500/- and asked the plaintiffs that if they do not have the money, the same may be paid after fifteen days and on payment of rs. 18,500/- the agreement would be executed. At that time defendant No. 1, abdul Majid, the brother of the appellant also told the plaintiffs that after fifteen days if he fails to come to Sagar, his brother, the defendant No. 2/ appellant would execute the agreement and that would be binding on him also and he would come at the time of registration of the sale deed.

(3.) THE plaintiffs also averred that on 3-10-83 defendant No. 2 received rs. 18,500/- as earnest money on behalf of himself and his brother, Abdul Majid and agreed to sell the suit house for Rs. 31,500/ -. It was agreed that remaining amount of consideration would be taken at the time of registration of the sale deed. A period of four months i. e. , up to 3-2-84 was settled for the execution of the sale deed. It was agreed by defendant No. 2 on behalf of both the brothers that vacant possession of the suit house shall be given to the plaintiffs after getting the same from the tenants. Thereafter, the defendants delivered vacant possession of three rooms to the plaintiffs. The plaintiffs also averred that in the month of January, 84 they went to the suit house and found that the area is less than what is shown in the map given by the defendants, therefore, on 25-1-84 they wrote a letter to the defendants in this regard and also served them with a notice dated 27-1-84. The defendants gave a false reply to the notice and by implication refused to execute the sale deed. The plaintiffs further averred that in order to collect money for purchasing the suit house plaintiff No. 2 sold his house having a value of Rs. 17,500/- for a small amount of Rs. 10,000/- and thus suffered a loss of Rs. 7,500/- to avoid any delay in payment of remaining amount of consideration.