DAYA NAND Vs. PAWAN KUMAR AND ORS.

JUDGEMENT

(1.) THIS regular second appeal at the instance of appellant plaintiff is directed against the judgment and decree of the lower Appellate Court whereby the suit for specific performance of the agreement to sell dated 05.07.2002 decreed by the trial Court has been dismissed by lower Appellate Court in appeal filed by defendant.

(2.) MR . Harkesh Manuja, learned counsel appearing on behalf of the appellant -plaintiff, in support of his grounds of appeal contends that the lower Appellate Court has committed illegality and perversity in setting aside the well reasoned judgment and decree of the trial Court, whereby the suit for specific performance of the agreement to sell dated 05.07.2002 was decreed and defendants No. 1 and 2 were directed to execute and register the sale deed of the land described in the plaint in favour of the appellant -plaintiff after receipt of the balance sale consideration amount within a period of three months from the date of passing of the decree, as the lower Appellate Court has been swayed away while allowing the appeal in not referring to the written statement of the defendants wherein no specific and categoric averment regarding the collusion between plaintiff and defendants No. 1 and 2 had been made. In essence, defendants No. 3 and 4 failed to aver and prove apparent collusion between plaintiff and defendants No. 1 and 2.

(3.) MR . Bharat Bhushan Jain, learned counsel appearing on behalf of respondents No. 1 and 2/defendants No. 3 and 4, in support of his contention submitted that the judgment and decree of the lower Appellate Court do not suffer from any illegality and perversity as the lower Appellate Court had discharged the obligation by referring to the oral and documentary evidence. He further submitted that there was an apparent and clear collusion between appellant -plaintiff and defendants No. 1 and 2. He further submitted that appellant -plaintiff had challenged the judgment and decree dated 28.11.2007 by filing first appeal which was dismissed. There was cutting on the date as well as on the back of the stamp paper on which the agreement was written and prayed that the appeal be dismissed.