Mukteshwar vs Pitambar Singh

Sibghat Ullah Khan, J.—Heard Shri Faujdar Rai, learned Counsel for the Appellant and Shri R.G. Prasad, learned Counsel for the Respondents at the admission stage.

This is Defendant''s Second Appeal. Original Respondent - Pitambar Singh since deceased and survived by legal representatives instituted Original Suit No. 445 of 1983 against the original Appellant since deceased and survived by legal representative. Suit was decreed by IV Additional Civil Judge, Saharanpur on 31.1.1986. Defendant was directed to execute the sale deed of the property in dispute pursuant to agreement for sale after receiving balance sale consideration of Rs. 12,600/- failing which Plaintiff was permitted to get the sale deed executed through court after depositing the balance sale consideration. Against the judgment and decree passed by the Trial Court Defendant filed Civil Appeal No. 147 of 1986 which was dismissed on 29.7.1999 by IIIrd Additional District Judge, Saharanpur hence this Second appeal.

In this Second appeal No. stay order was granted hence decree was executed and sale deed pursuant to the agreement for sale was executed by the executing court in favour of the Plaintiff-Respondent. This Second appeal was taken up as fresh on 13.9.1999 and it was directed to be "Put up tomorrow as prayed." On 14.9.1999 following order was passed:

List of unlisted cases are revised. Passed over and list in the ordinary course.

On 27.8.2001 the following order was passed:

None appears. List in ordinary course.

Thereafter on 23.11.2001 the appeal was ordered to be listed in due course. Ultimately appeal was dismissed in default on 22.4.2011 but was restored on 3.5.2011.

According to the Plaintiff''s case Defendant executed registered agreement for sale on 26.11.1980 in favour of the Plaintiff, the agreed sale consideration was Rs. 29,800/- out of which Rs. 17,200/- was paid as earnest money, it was agreed that Sale deed would be executed within three years, that inspite of repeated requests of the Plaintiff, Defendant did not execute the sale deed hence a notice was given on 2.10.1983 asking the Defendant to come to the office of Sub-Registrar on 25.11.1983 for execution of the sale deed after receiving the balance sale consideration however, on the said date Defendant did not reach the office of Sub-Registrar even though Plaintiff remained present there with balance sale consideration.

The defence was that the transaction in question was a loan transaction and Defendant had only received Rs. 10,000/- and he was compelled to execute the agreement for sale on the understanding that on repayment of the loan sale deed would not be required to be executed by him. It was also stated by the Defendant that he continued to pay the interest without any receipt and he had paid the interest uptil 31.5.1983 and thereafter due to illness he could not pay the interest. It was also pleaded that the agreement was not intended to be acted upon. It was also stated that total valuation of the land and trees was not less than Rs. 1.25 lacs.

Both the courts below held that the agreement was executed voluntarily and it was not a loan transaction and Defendant had received Rs. 7,200/- earlier and Rs. 10,000/- before the Sub-Registrar at the time of execution/registration of the agreement for sale. The courts below also held that Defendant clearly admitted the notice of the Plaintiff dated 2.10.1983 asking him to reach the office of Sub-Registrar on 25.11.1983 and he also admitted that neither he gave any reply to the said notice nor reached the office of Sub-Registrar. From this the Courts below rightly inferred that in case the agreement for sale had been intended not to be acted upon then Defendant should have surely replied the notice stating the said thing. The courts below also found that there was No. reason to deny the relief of specific performance and to direct only return of earnest money.

Both the courts below also held that Plaintiff had always been ready and willing to perform his part of the contract and he had also given notice in furtherance thereof.

The findings recorded by the Courts below are pure findings of fact. Learned Counsel for the Appellant has not been able to point out any legal error therein.

Accordingly, I do not find any legal error in the impugned findings. No. substantial question of law is involved. Second appeal is therefore dismissed under Order 41 Rule 11 Code of Civil Procedure