MULK RAJ SETHI Vs. S. N. KHANNA

JUDGEMENT

(1.) S. N. Khanna, defendant, had allegedly agreed to sell a plot No. A%7.. Tilak Nagar, Jaipur, (comprising of 1,425 sq. yards of land) for a consideration of Rs. 1,45,000.00 under an agreement to sell duly executed on Aug. 20, 1973 in favour of Mulk Raj Sethi, plaintiff. who is said to have paid a sum of Rs. 45,000.00 as advance money on the very day, with the assurance to pay balance consideration at the time of registration, but with the stipulation that he (S.N. Khanna) would execute the sale deed in favour of Nlulkraj Sethi within two months or the period extended from time to time by the parties. Possession of the annexee to the disputed property was handed over to the plaintiff. The plaintiff has come up with his case that despite his persistent requests, the defendant has not paid any heed to his requests for performing the terms and conditions of the agreement to sell, rather after agreement to sell, with an oblique motive, the defendant took forcible possession back of the annexee to the disputed property which was handed over during the execution of the agreement to sell by way of fabrication of documentary evidence. Therefore, the plaintiff instituted a civil suit for specific performance of the contract on March 18, 1975, with additional prayer to award mesne profits (2; Rs. 2000.00 per month from the defendant till the possession is given to the plaintiff.

(2.) The defendant in his written statement admitted execution of the agreement but denied to have given possession of the annexee to the property in favour of the plaintiff inasmuch as he denied of the fact of the talk about execution of a power of attorney in favour of one Shri Maliram Verma for getting a sale deed executed. The defendant had pleaded that he had asked the plaintiff to send a draft sale deed fixing the date of execution of the sale but nothing was done by the plaintiff in this respect inasmuch as no amount of stamps duty & registration charges etc. was given nor he disclosed a name of his nominee in whose favour the sale was to be executed. His case was that he along with his advocate, Ramavtar met the plaintiff at Maliram Verrna's place but the plaintiff failed to even disclose the nominees so, according to the defendant, it was the plaintiff who did not carry out' the agreement rather he was ready and willing to perform his part of contract and in these circumstances, the plaintiff is not entitled to any relief for specific performance.

(3.) On the basis of the pleadings of the parties, six issues were framed. Five witnesses have been produced by the plaintiff whereas five witnesses were produced by the defendant. After hearing both the parties, the learned trial Court decided issue Nos. 3 to 6 in favour of the plaintiff but decided issue No. 1 & 2 against the plaintiff. On the findings arrived at under issue Nos. 3 to 6 the trial court decreed plaintiff's suit in part but it declined to pass decree for specific performance under its judgment dated 17.5.19b0. Hence this first appeal by the plaintiff.