JATI RAM SAINI Vs. PRITHI ALIAS SANSI

JUDGEMENT

(1.) THIS regular second appeal is directed against the judgment and decree passed by the Additional District Judge, Jind on 15. 11. 1994 modifying that of the trial Court whereby the relief for specific performance was denied to the plaintiff-appellant and his suit was decreed for refund of earnest money only along with interest from the date of the execution of the agreement till realisation.

(2.) FACTS giving rise to this appeal which lie in a narrow compass may first be noticed.

(3.) PRIOR to the execution of the agreement to sell, Prithi who was the owner in possession 6f the suit land had mortgaged the same with possession in favour of Bansi Lal and Exhibit PW5/a is the mortgage deed dated 6. 6. 1985 on the record. This mortgage was redeemed by Prithi on 6. 5. 1988 i. e. on the same day on which he executed the agreement to sell in favour of the plaintiff-appellant. Redemption of the mortgage is clear from the endorsement Exhibit PW4/a on the back of the mortgage deed. On a consideration of the entire oral and documentary evidence led by the parties, the trial Court came to the conclusion that the plaintiff was always ready and willing to perform his part of the contract and that he was present in the office of the Sub Registrar on the appointed day to pay the balance amount to the defendant who did not turn up to receive the same. It was also found that Prithi was not in possession of the suit land and that it was Bansi Lal who was in possession of the same but not as a tenant. Consequently, the suit of the plaintiff was decreed and he was held entitled to a decree for specific performance of the agreement dated 6. 5. 1988 with a right to recover possession from Bansi Lal in accordance with law.