BALDEV SINGH Vs. CHANDER BHAN

JUDGEMENT

(1.) THIS is defendant's appeal challenging the judgment and decree of the lower Appellate Court whereby suit filed by plaintiff -respondent No.1 for specific performance of the agreement dated 28.5.1999, has been decreed for an alternative relief for recovery of Rs.1,90,000/ -( i.e. refund of earnest money) along with interest at the rate of 12 % per annum from the date of institution of the suit till the date of decree with future interest at the rate of 6% from the date of decree till its realization.

(2.) BRIEFLY , the case of plaintiff respondent before the trial Court was that the appellant who was owner of the suit land executed an agreement to sell dated 28.5.1999 for a total consideration of Rs.2,44,000/ - and received a sum of Rs.1,90,000/ - as part payment from him at the time of execution of the agreement. The balance sale price amounting to Rs.54,000/ - was agreed to be paid by the plaintiff -respondent to the appellant at the time of execution and registration of the sale deed which was to be executed on or before 14.6.2000. It was the further case of respondent No.1 that the appellant had put his thumb impressions on the aforesaid agreement admitting the same to be correct in the presence of witnesses, and it was further agreed between the parties that in case of default on the part of the appellant, he will pay double the amount of the earnest money to the plaintiff -respondent and he may also get the sale deed executed through Court. The possession of the suit land remained with the appellant though it was recited in the agreement that possession was given to respondent No.1. It was further averred by respondent No.1 that he was always ready and willing to perform his part of the contract. He remained present on 14.6.2000 in the office of Sub Registrar,Sunam, to perform his part of the contract, but the appellant did not turn up. Respondent No.1 served a notice on 18.12.2000 upon the appellant. He put off the matter on one pretext or the other. It was the further case of respondent No.1 that appellant sold the land in dispute to respondent No.2 vide sale deed dated 24.4.2000, which was illegal, null and void. Respondent No.2 was well within the knowledge of the agreement between the parties with regard to the suit land. The said sale deed had no effect on the rights of respondent No.1 and the same was liable to be set aside. On 1.2.2001 and 5.2.2001 the plaintiff again approached the defendants but they refused to execute the sale deed in favour of the plaintiff, the present suit was filed.

(3.) APPELLANT and respondent No.2(defendants) appeared and contested the suit by filing separate written statements. Appellant in his written statement while raising various legal objections submitted on merits that the alleged agreement to sell was forged and fabricated document and he never entered into the alleged agreement to sell nor the earnest money ofRs.1,90,000/ - was received by him. It was further averred that in fact respondent No.1 was a commission agent through whom he used to sell his agricultural produce and it may be possible that his thumb impressions were secured by respondent No.1 on blank papers on which he might have forged the agreement. It was admitted that the suit land was sold by him to respondent No.2 which was legal and valid. Other averments were denied. Dismissal of the suit was prayed.