GOPAL DASS Vs. KHAN CHAND

JUDGEMENT

(1.) It is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (in short "the Code") challenging concurrent findings of fact to the effect that the plaintiff-appellant was not entitled to specific performance of the agreement to sell. The trial Court under issue No. 3 had passed a decree for refund of Rs. 2400/-, which has been modified by the Lower Appellate Court enhancing the amount to Rs. 6,500/-.

(2.) Facts in brief are that the plaintiff- appellant filed Civil Suit No. 5-B of 1968 on 6-11-1968 for possession by way of specific performance of the agreement dated 10-1-1961. According to the case of the plaintiff appellant, he had, through his grand-father entered into an agreement to sell with defendant-respondent No. 1 on his own behalf and on behalf of defendant respondent No. 2. The total consideration stipulated in the agreement was Rs. 10,500/- and an amount of Rs. 2400/- was paid as earnest money. It is appropriate to mention that the plaintiff appellant was minor at the time of agreement to sell dated 10-1-1961. Subsequently, another agreement was entered into on 22-1-1963 and a sum of Rs. 4100/- was stated to have been paid to the defendant respondents. Alleging that the defendant respondents have failed to execute the sale deed, a suit for specific performance was filed or in the alternative, an amount of Rs. 10,500/- was claimed as a refund, which included interest on the aforementioned amount of Rs. 4100/- paid in advance.

(3.) The stand of the defendant-respondents before the Courts below was that defendant-respondent No. 1 had no right to enter into an agreement to sell on behalf of defendant-respondent No. 2. It was further asserted that the plaintiff appellant was not entitled to specific performance of the agreement. However, it was admitted that the defendant-respondents were owners in possession of the suit property and defendant-respondent No. 1 had received a sum of Rs. 2400/-. It was also admitted that an agreement to sell was entered on 10-1-1961, which was supplemented on 22-1-1963. Their further stand was that after the supplementary agreement, no amount was paid and, therefore, the plaintiff appellant was not ready and willing to perform his part of contract. Another plea taken was that trie agreement by grand-father of the plaintiff appellant was void and it could not be enforced. Therefore, it was pleaded that the plaintiff-appellant was not entitled to specific performance of the agreement to sell nor he was entitled to any refund.