ANANDILAL Vs. ABDUL HUSSAIN

JUDGEMENT

(1.) THIS is a second appeal by the plaintiffs in a suit for recovery of Rs. 3500/along with interest paid by them on 29th May, 1954 to the respondent towards part payment of the sale price of 106 Bighas and 10 Biswas of land situated in village Ghori for which a contract to sell was entered into between them on that elate. The land was to be sold for a sum of Rs. 8500/-Balance of Rs. 5000/- was to he paid on Phagun Sudi 15 Smt. 2011 corresponding to 8th March, 1955 when the sale deed was to be executed and mutation to be effected in the plaintiffs' favour. Two documents were executed regarding the agreement of sale -- one by the defendant in favour of the plaintiffs marked Ex. 1 and the other by the plaintiffs in favour of the defendant marked Ex. A1.

(2.) PLAINTIFFS' case was that they were ready and willing to perform their part of the contract and had approached the defendant a few days before Phagun Sudi 15 as also on the same day and had offered to pay Rs. 5000/-, balance of the sale money and asked the defendant to execute the sale deed in their favour and to deliver vacant possession of the land but the latter declined to do so. The plaintiffs, therefore, claimed a refund of Rs. 3500/-along with interest from the defendant.

(3.) THE defendant though admitted the agreement of sale as also the receipt of Rs. 3500/- yet stated that there was no agreement to deliver vacant possession of the land to the plaintiffs and since the plaintiffs were insisting on getting vacant possession, the sale deed was not executed. It was stated that Rs. 3500/- were paid as earnest money which were forfeited by the defendant on account of the plaintiffs' breach of contract.