GURBACHAN SINGH Vs. NAURATI KAUR

JUDGEMENT

(1.) Present Regular Second Appeal is directed against the judgment and decree dated 13.12.2011 passed by Additional District Judge, Patiala whereby appeal filed by the plaintiff was accepted and the judgment and decree passed by the Court of first Instance dated 17.12.2009 whereby suit filed by the plaintiff was dismissed, was set-aside.

(2.) For the sake of convenience, parties are being referred to as per their status before the Court of first Instance.

(3.) Relevant facts of the case for the purpose of decision of this appeal; that the plaintiff filed a suit for specific performance of the agreement of sale dated 22.5.2002 [Ex. P1] in respect of the suit land and in the alternative, for the recovery of Rs. 1,25,000/- [Rs.20,000/- as mortgage money, Rs. 95,000/- as earnest money and Rs.10,000/- as damages] along with interest at the rate of 24% per annum. The parties to the litigation entered into an agreement of sale [Ex. P1] and payment of Rs.95,000/- was made as earnest money in the presence of attesting witnesses. The total sale consideration was settled at Rs.1,25,000/-. Rs.20,000/- was to be adjusted which was mortgage money and having been received by the defendant on the basis of registered mortgage deed dated 17.9.1997 [Ex.P6] and the balance payment of Rs.10,000/- was to be made at the time of registration of the sale deed. The target date for execution of the sale deed was fixed as 20.5.2004. On the date fixed for execution of sale deed, Jasbir Singh, the General Power of Attorney of the plaintiff, remained present in the office of Sub Registrar, Bhadson along with the balance sale consideration, but the defendant did not come present. Said Power of Attorney of the plaintiff got his affidavit [Ex.P5] attested. The possession was already with the plaintiff. As the defendant failed to perform his part of agreement and started resiling from the agreement, [Ex. P1], present suit for specific performance of agreement of sale was filed.