KHALIL Vs. HAMIDA

JUDGEMENT

(1.) THIS second appeal under section 100 of the Code of Civil Procedure at the instance of the plaintiff/appellant is directed against the judgment and decree dated 18.3.91 passed by 2nd Addl. District Judge, Gumla allowing Title Appeal No. 57/87 and setting aside the judgement and decree dated 25th July, 1987 passed by Subjudge, Gumla in Title suit no. 56/84.

(2.) THE plaintiff/appellant instituted the aforementioned title suit no. 56/84 for a decree for specific performance of contract in respect of the properties mentioned in schedule A to the plaint (hereinafter referred to as the suit property) and for a direction to the defendant/respondent to execute the sale deed in favour of the plaintiff. Plaintiff 'scase, inter alia, was that the suit property belonged to the defendant who, in need of money, wanted to sell the same and for that he approached the plaintiff in 1981 and it was agreed between the parties to transfer the suit property on a consideration of Rs. 17,000/ -. Plaintiff 'sfurther case was that in pursuance of the settlement two agreements were prepared on 22.10.81; one on the stamped paper and the other on a sada paper. The agreements were signed by the defendant and two witnesses. On the date of agreement a sum of Rs. 7500/ - was advanced by the plaintiff to the defendant. Plaintiff further asserted that he was allowed to continue possession of the suit property in part performance of the contract as he was a tenant in the said property prior to that. The plaintiff pleaded that since the date of agreement he repeatedly requested the defendant to execute and register the sale deed but the defendant evaded the same on one pretext or the other and insisted him to pay the rent of the suit premises till registration is effected. However, the plaintiff regularly tendered rent but no rent receipt was granted. It is alleged that on 1.7.83 the defendant took a further sum of Rs. 3000/ - and made an endorsement to that effect on the back of the agreement. In the month of April, 1984 he again took a further sum of Rs. 1200/ - in two instalments which could not be endorsed on the agreement as by that time the same was misplaced. Thus, it is alleged, that the plaintiff has already paid a sum of Rs. 11,700/ - out of Rs. 17,000/ - to the defendant towards the consideration money. Lastly, it is pleaded that the plaintiff was and is always ready to perform his part of contract but the defendant always evaded the same on one pretext or other. Ultimately a pleader 'snotice was sent but even then the defendant did not register and execute the sale deed and hence the suit.

(3.) THE trial court framed as many as nine issues which are as follows: ''