POORNARAM Vs. KISHANI

JUDGEMENT

(1.) The appellant-defendant, Poornaram is aggrieved by the judgment and decree dated 6.8.2011 passed by the Additional District Judge, Ratangarh, District Churu whereby the learned Judge allowed the first appeal of the respondent-plaintiff and reversed the judgment and decree dated 29.11.2005 passed by the learned Civil Judge (Sr. Div.), Ratangarh whereby the learned Magistrate had dismissed the suit for specific performance of the agreement filed by the respondent-plaintiff. Briefly stated the facts of the case are that in 1987 the respondent-plaintiff, Smt. Kishani had filed a suit for specific performance of the agreement dated 19.6.1985 against the appellant-defendant. In the suit, she had claimed that she had a total land measuring 55 Bigha, 12 Biswa, situated in Khasra No. 260 measuring 15 bigha, 12 Biswa and in Khasra No. 327 measuring 40 Bigha at Village Nosaria. Out of the said land, she sold a land admeasuring 20 Bigha, 15 Biswa for a sum of Rs. 16000/- to the appellant-defendant through a registered sale deed dated 19.6.1985. However, on the same day, i.e. on 19.6.1985, the appellant-defendant and she executed an agreement to sale for re-purchase of the land in favour of the respondent-plaintiff to the effect that in case the respondent-plaintiff were to repay the principal amount alongwith an interest @ Rs. 1/- per hundred per month to the appellant-appellant within a period of two years from the date of sale of the land, the appellant-defendant will again re-register the sale deed in favour of the respondent-plaintiff. During the course of these two years, the appellant-defendant would cultivate the land and would bear the expenses of registration of the sale deed in lieu of the cultivation made by him. In pursuance of the said agreement for re-sale, dated 19.6.1985, the respondent-plaintiff paid a sum of Rs. 5300/- to the appellant-defendant on 24.6.1985. According to the respondent-plaintiff, she was always eager and willing to pay the remaining amount of Rs. 10,700/- to the appellant-defendant. However, the appellant-defendant ignored her request Since he had not complied with the agreement for re-sale, on 18.6.1987 the respondent-plaintiff served a legal notice upon the appellant-defendant. Despite the service of the notice, the appellant-defendant refused to accept the remaining amount, and refused to re-sell the land to the respondent-plaintiff. Therefore, she was compelled to file the suit for specific performance of the said agreement.

(2.) The appellant-defendant submitted his written statement. He denied the fact that he had entered into an agreement to re-sell the land on 19.6.1985. He further denied the fact that the respondent-plaintiff had paid him a sum of Rs. 5300/-. Instead, he claimed that he had given her a loan of Rs. 10700/- alongwith an interest @ Rs. 2/- per hundred per month. He further claimed that a promissory note and receipt was executed by the plaintiff-respondent in his favour. He further claimed that repeatedly he had asked for re-payment of the loan amount, but she refused to repay the loan. Hence, he prayed that her suit should be dismissed by the learned trial Court.

(3.) On the basis of the pleadings of the parties, the learned trial court framed five issues including the issue of relief. In order to buttress her case, the respondent-plaintiff examined four witnesses, and submitted fifteen documents. In turn, the appellant-defendant examined himself as a single witness, and submitted four documents. After going through the oral as well as the documentary evidence on record, by judgment and decree dated 29.11.2005, the learned Magistrate dismissed the suit. Since the respondent-plaintiff was aggrieved by the said judgment and decree, she filed an appeal before the learned Judge. By judgment and decree dated 6.8.2011, the learned Judge set aside the judgment and decree dated 29.11.2005 and allowed the appeal. Hence, this second appeal by the appellant-defendant before this court.