BHINVA RAM Vs. SOHAN RAM

JUDGEMENT

(1.) ORIGINAL Suit No. 17/1977 (2/1972) filed by the respondent Sohanram for specific performance of the contract for sale of agricultural land in the alternative for refund of Rs. 1500/- with interest was decreed for both the reliefs in the alternative by the learned Munsif, Sardarshahar on 5. 10. 1978 with a further decree for injunction. The learned District Judge, Churu, in Appeal No. 67/1978 modified the decree by setting aside the relief of injunction but otherwise maintained the decree passed by the Trial Court and dismissed the appeal filed by the defendant on 24. 8. 1982. The present appeal by the legal representatives of the Original defendant Bhinvaram was admitted by this Court on 2. 2. 1983 while formulating the following substantial questions of law:- (a) Whether the plaintiff's suit for specific performance of the agreement to sale should not be dismissed on the ground that the plaintiff did not express his readiness and willingness to perform his part of the contract upto the date of the suit? (b) Whether in the absence of averments in the plaint about the readiness and willingness of the plaintiff to perform his part of the contract, a decree for specific performance could be maintained in the present case? (c) Whether the appellant could be allowed to raise the question of absence of readiness and willingness on the part of the plaintiff to perform his part of the contract at the stage of second appeal for the first time? (d) Whether the plaintiffs suit for specific performance is maintainable although the plaintiff has not prayed for the complete relief permissible to him, because no prayer for possession has been made in the plaint?''

(2.) DURING the course of hearing of this appeal, another substantial question of law, which directly arose for just and effectual determination of this case, was formulated thus:- `` (e) Whether the decree granting both the reliefs claimed only in the alternative by the plaintiff of specific performance of the contract and refund of the consideration paid, could be maintained in the form granted by the Trial Court and affirmed by the first appellate court?''

(3.) ON the pleadings of the parties, the learned Trial Court framed seven issues: Issue No. 1 on the question as to whether the defendant on Sawan Budi 12, 2027 executed the agreement and after taking Rs. 1500/- cash, agreed to sell 27 bighas and 18 biswas of the agricultural land of Khasara No. 681 to the plaintiff; Issue No. 2 on the question as to whether the plaintiff was entitled to get the sale deed executed through the Court. Issue No. 3 on the alternative prayer that in other event whether the plaintiff was entitled to recover Rs. 1500/- with interest at the rate of 1% per month from the defendant; Issue No. 4 on the question whether the agreement was inadmissible in evidence; Issue No. 5 as to whether the plaintiff was money- lender and could not maintain the suit without license; and Issue No. 6 on the question as to whether the suit was not of the jurisdiction of the Court?