GURMAIL SINGH Vs. MUKAND SINGH AND ANOTHER

JUDGEMENT

(1.) DEFENDANT No. 1 has filed the instant appeal challenging the judgment and decree of the trial Court dated 02.06.2010, whereby suit of the plaintiff -respondent for specific performance of the agreement to sell dated 26.7.2004 has been decreed and the judgment and decree of the lower Appellate Court dated 13.12.2011, whereby appeal filed by the defendant -appellant against the aforesaid judgment and decree of the trial Court has been dismissed. As per the averments, plaintiff -respondent filed a suit for possession of suit land measuring 07 kanals as detailed in the suit, by way of specific performance of agreement to sell dated 26.7.2004 executed in his favour by the appellant, after adjusting a sum of Rs. 2,12,000/ - as a part of sale consideration. As per averments, appellant executed an agreement to sell with the plaintiff -respondent agreeing therein to sell the suit land measuring 07 kanals as detailed in the plaint and executed the agreement in his favour for a total sale consideration of Rs. 2,20,000/ - and received Rs. 2,12,000/ - as part of the sale consideration from the plaintiff in the presence of marginal witnesses of the agreement to sell. Last date for execution and registration of the sale deed was fixed as 26.01.2005. Plaintiff -respondent was ready and willing to perform his part of the contract and he also appeared before the Sub Registrar on the stipulated date but the appellant did not turn up. Rather he resiled from the agreement. Later on, plaintiff -respondent came to know that appellant had taken loan from respondent No. 2 by mortgaging the property in dispute. Since appellant refused to perform his part of the contract, necessity arose to file the instant suit.

(2.) UPON notice, appellant appeared and contested the claim submitting that on 25.12.1999, he borrowed a sum of Rs. 50,000/ - from plaintiff -respondent and who as a security got executed agreement to sell adding therein the interest @ 3% per month. On failure to repay the loan amount, plaintiff got executed a fresh agreement adding interest w.e.f. 26.12.2000 to 26.12.2001. He also got executed agreement to sell dated 12.1.2002 qua land measuring 07 kanals comprised in Killa No. 40/5/2 showing an amount of Rs. 1,32,000/ - as earnest money. On 26.12.2002, another agreement to sell came into existence between plaintiff and defendant No.1 showing an amount of Rs. 2,12,000/ - received by him as earnest money which included Rs. 10,000/ - borrowed by him from plaintiff on 24.12.2003 vide another agreement executed on that day. Defendant No. 1 failed to repay the loan upto 26.6.2004, so ultimately, a fresh agreement was executed between the parties on 26.7.2004. It is further submitted that appellant never intended to sell his property. The agreement dated 26.7.2004 was executed merely as security. All other averments made in the suit were denied and dismissal of the suit was prayed for. Replication to the written statement was filed wherein all the averments made in the plaint were reiterated and those of written statement were denied. From the pleadings of the parties, following issues were framed: -

(3.) The trial Court took up issues No. 1 and 5 together and decided both these issues in favour of plaintiff -respondent and against appellant -defendant. Issues No. 2 and 3 were decided in favour of the plaintiff and against the appellant -defendant respondents. Whereas issue No. 4 was decided against the appellant. Consequently the suit of the plaintiff was decreed.