BASHIR Vs. ALIYAS

JUDGEMENT

(1.) Defendant Bashir having lost in both the courts below is in second appeal.

(2.) Respondent-Plaintiff Aliyas filed suit for possession of suit land measuring 5 marlas towards eastern side out of share of Defendant Appellant in land measuring 2 kanals comprised of khasra No. 5//18/l by specific performance of the agreement to sell dated 3.7.2002. The Plaintiff alleged that Defendant is owner in possession of 10 marlas land being 10/40 share in the aforesaid 2 kanals land. The Defendant agreed to sell 5 marlas suit land being eastern part of his share to the Plaintiff for total consideration of Rs. 35,000/- and received Rs. 19,000/- as earnest money and executed the impugned agreement to sell dated 3.7.2002. Sale deed was agreed to be executed upto 20.12.2002. Accordingly, the Plaintiff attended the office of Sub Registrar on 20.12.2002 with requisite money to get the sale deed executed in terms of the agreement. Defendant did not turn up and committed breach of the agreement, although the Plaintiff always remained ready and willing to perform his part of the contract. The Plaintiff even served notice dated 6.1.2003 on the Defendant requiring him to execute sale deed in terms of the agreement.

(3.) The Defendant admitted the execution of the agreement and receipt of earnest money. The Defendant however pleaded that he was present in the office of Sub Registrar on 20.12.2002 for execution of the sale deed in terms of the agreement but the Plaintiff himself did not have requisite money to get the sale deed executed and consequently agreement stands lapsed and earnest money stands forfeited. Various other pleas were also raised.