LAL CHAND Vs. TEK CHAND

JUDGEMENT

(1.) C.M. No. 5537-C of 2012 has been filed seeking condonation of 107 days delay in refiling the present appeal. For the reasons stated in the application the same is allowed and delay of 107 days in refiling the present appeal is condoned. C.M. No. 5538-C of 2012 has been filed seeking condonation of 07 days delay in filing the appeal. For the reasons stated in the application the same is allowed and delay of 07 days in filing the present appeal is condoned. C.M. No. 5539-C of 2012 has been filed under Sec. 148 & 149 Code of Civil Procedure for making good the deficiency of court fee and also consider the appeal within limitation. Allowed as prayed for. RSA No. 1989 of 2012 Defendant/appellant is in second appeal, against the judgment and decree passed by both the courts below whereby the suit filed by the plaintiff for specific performance of agreement to sell has been decreed by the learned Civil Judge(Junior Division), Abohar vide impugned judgment and decree dated 30.09.2009, whereby the alternative relief of recovery was granted to the plaintiff. Dissatisfied against the same, both the parties went in appeal whereby the appeal filed by Tek Chand(plaintiff) was allowed with costs and the suit was decreed in toto whereas the appeal filed by the defendant/appellant was dismissed by learned District Judge, Ferozepur vide impugned judgment and decree dated 02.08.2011.

(2.) Facts in brief for proper adjudication of the case are that Tek Chand (plaintiff) filed the present suit through his attorney Ravi Kumar for specific performance of agreement to sell dated 14.09.1999 regarding the suit property for a total sale consideration of Rs.40,000.00. It was alleged that the defendant received Rs.20,000.00 by way of earnest money and it was agreed between the parties that the last date for execution of the sale deed would be 10.03.2000. It was further averred by the plaintiff that on 10.03.2000, defendant requested for extension of date for execution of the sale deed and as per the said request, the date was extended from 10.03.2000 to 10.09.2000. This agreement was reduced into writing on the back side of the already existing agreement to sell and thus the date was extended. Again on 10.09.2000, the defendant requested to extend the date to 10.11.2000 and regarding this also the writing was also executed on the back side of the agreement. It was further averred by the plaintiff that on 8.11.2000, date was again extended by the defendant from 10.11.2000 to 29.12.2000 and again the writing was prepared to this effect on the back side of the agreement. The plaintiff averred that on 29.12.2000, he was ready to perform his part of the contract, but the defendant took another amount of Rs.10,000.00 as earnest money from the plaintiff and handed over the vacant possession of the house of the plaintiff and promised to execute the sale deed on 1.9.2002 and it was accepted by the plaintiff and writing was again executed on the back side of agreement to sell in the presence of witnesses. The plaintiff pleaded that on 28.8.2002 he executed a legal notice through registered post through his counsel and called upon defendant to come present before the office of sub registrar for execution of the sale deed on 2.9.2002, but he refused to accept the same. As 1.9.2002 was a holiday, the plaintiff approached the defendant for execution of the sale deed on 2.9.2002 and also remained present in the office of sub registrar the whole day. However, the defendant did not turn up and, therefore, the necessity arose to file the present suit.

(3.) Upon notice, defendant pleaded that he never agreed to sell his property and never received any earnest money of Rs.20,000.00 from the plaintiff. It was stated in the written statement that no agreement was ever executed between the parties and, therefore, no question arose of extension of time or receipt of further earnest money of Rs.10,000.00. It was pleaded that the agreement in question is forged and fabricated document and a result of connivance between the plaintiff and the attesting witnesses. It was averred that the possession of the suit property was never handed over to the plaintiff by virtue of the agreement in question. It was rather pleaded that defendant had raised a loan of Rs.10,000.00 from Ravi Kumar(brother of the plaintiff) which was repaid by him to Ravi Kumar in installments. The entries to this effect were also made in the notebook of the plaintiff which were later on snatched by Ravi Kumar. Even the son of the defendant was kidnapped by Ravi Kumar and his companions. Ravi Kumar along with the plaintiff and other persons had forcibly entered the house of the defendant and inflicted injuries upon the person of the defendant as well as his wife and criminal proceedings are already pending against them. It was thus prayed that the suit be dismissed.