SAUDARSHAN KUMAR Vs. RAJ RANI

JUDGEMENT

(1.) THIS is plaintiff's appeal filed under Section 100 of the Civil Procedure Code, 1908 (for brevity, the 'Code') challenging concurrent findings of facts recorded by both the Courts below declining his prayer for specific performance of agreement to sell dated 25.11.1986 and granting him alternative relief of recovery of Rs. 74,000/- from defendant-Sain Dass now represented by his L.Rs. namely defendant-respondents No. 1, 1-A and 1-B. Both the Courts below have decided that the agreement to sell the shop in dispute dated 25.11.1986 was entered into between plaintiff-appellant and defendant-Sain Dass. It has also been found that the plaintiff-appellant was always ready and willing to perform his part of contract. It has also been concluded that defendant-Sain Dass failed to perform his part of the contract. However, while granting the relief, the suit of the plaintiff-appellant was decreed by granting him the alternative relief of recovery of earnest money and liquidated damages as envisaged by the agreement to sell itself.

(2.) IN order to put the controversy in its proper perspective, it is pertinent to make a reference to the following pedigree table :-

(3.) BOTH the courts decided all the three issues in favour of the plaintiff- appellant holding that there has been a valid agreement executed by defendant-Sain Dass and on 25.11.1981 for sale of disputed shop to the plaintiff-appellant. It has further been held that the plaintiff-appellant had been ready and willing to perform his part of the contract and that defendant-Sain Dass had been guilty of breach of the agreement to sell. The lower appellate Court framed an additional issue as to whether defendant-Sain Dass was the exclusive owner of the suit property or he was an absolute owner on the strength of memo of partition dated 21.5.81. The report of the Civil Judge was obtained to return the finding against the plaintiff-appellant. The findings of the lower appellate Court read as under :-