OM PARKASH Vs. SMT. NARAINI DEVI

JUDGEMENT

(1.) The appellant-defendant is in Regular Second Appeal against the judgment and decree of the lower Appellate Court, whereby suit seeking specific performance of the agreement to sell dated 03.01.2006/09.01.2006, has been decreed, and appellant-defendant was called upon to execute and register the sale deed on receipt of balance sale consideration.

(2.) Mr. Jai Vir Yadav, learned counsel appearing on behalf of appellant-defendant submits, that property at the hands of Vendor namely Om Parkash was ancestral in nature, much less, even agreement to sell was denied by stating that it was a loan transaction. Though, respondent-plaintiff has proved the execution of the agreement to sell but the fact remains that the property is ancestral in nature. The trial Court instead of granting the discretionary relief gave the alternative relief and ordered for refund of Rs. 2,10,000/- along with interest @ 18% p.a. Since both the parties were aggrieved with the aforementioned findings vis-a-vis interest @ 18% p.a. & the respondent-plaintiff having not granted discretionary relief, filed appeal and cross-objection.

(3.) The lower Appellate Court has dismissed the cross-objection but allowed the appeal of the plaintiff by holding that the appellant-defendant, failed to prove the character and nature of the property being ancestral and granted the discretionary relief. The lower Appellate Court being last Court of facts was enjoined upon an obligation to examine documentary evidence i.e. Ex.DW1/A, Ex.DW2/A, Ex.DW6/A but failed to do so, thus, there is misappreciation/non-reference of the documentary evidence, thus, such eventuality raises substantial questions of law for determination.