DES RAJ Vs. BHIM

JUDGEMENT

(1.) RESPONDENT No. 1 Bhim Dass filed a suit for possession by way of specific performance of agreement to sell dated 21.2.1979. His case is that the suit land was agreed to be sold to him and earnest money of Rs. 20,000/- was taken and sale deed was to be executed on or before 18.6.1979 which was later on extended to 18.6.1980. The plaintiff went to the office of the Sub Registrar with the remaining money on 18.6.1980 but the defendant- appellant did not turn up and plaintiff had always been ready and willing to perform his part of the contract and was still ready to do so but the defendant-appellant transferred the suit land in favour of his sons by way of a collusive decree. The defendant-appellant contested the suit, denying the execution of the agreement as well as extension of time for performance of the contract. The transferee also contested the suit.

(2.) THE trial Court dismissed the suit holding that though execution of agreement Ex.P4 and payment of earnest money were duty proved, extension of time was not proved. It was observed that Suresh Kumar Deed-writer PW4 nowhere stated that he read over and explained the writing regarding extension of the date and they put their thumb impressions after admitting its contents to be correct. In the register of deed writer, entry regarding extension of time was not made though plaintiff PW6 claimed that an entry was made. There was no attestation of the writing regarding extension of time. The writing was also not signed by the deed writer. It was also held that the plaintiff was not able to prove that he was ready and willing to perform his part of the contract and neither a notice was served on the defendant nor version of the plaintiff was corroborated by any other evidence that he went to the office of the Sub Registrar.

(3.) LEARNED counsel for the defendant contended that extension of time has been endorsed on the original agreement instead of there being a separate document. He further submitted that attesting witnesses have not stated about extension of time while the lower appellate Court has misread the evidence to hold that attesting witnesses have also proved extension of time. He also submitted that application moved before the Sub Registrar to show presence of the plaintiff was not signed by the plaintiff when on the back side of the application name of the plaintiff was not correctly mentioned. It was further contended that it will be inequitable to require the appellant to execute the sale deed now as prices had gone up.