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2017 DIGILAW 2769 (ALL)

Israr Ali v. Raj Pal Singh

2017-11-29

RITU RAJ AWASTHI

body2017
JUDGMENT : 1. Heard learned counsel for the appellant and perused the records. 2. The instant second appeal has been filed under Section 100 CPC against the judgment and decree dated 19.9.2017, passed in Regular Civil Appeal No.72 of 2014; Israr Ali Vs. Rajpal Singh arising out of judgment and decree dated 31.7.2014, passed in Regular Suit No.303 of 2006; Rajpal Singh Vs. Israr Ali, whereby the suit for specific performance of contract filed by respondent-plaintiff was allowed and decreed and the appeal preferred before the lower appellate court by appellant-defendant was dismissed. 3. As per given facts, the respondent-plaintiff had filed a suit for specific performance on the basis of agreement to sale dated 10.10.2005, according to which the appellant-defendant had agreed to sell the land situated at Chak No.58, Plot No.683, measuring 0.252 hectare, Village Bachgawan, Pargana Pasgawan, Tehsil Mohammadi, District Kheri to the respondent-plaintiff at a consideration of Rs.80,000/-. As per the terms of agreement to sale the appellant-defendant was required to execute the sale deed in favour of respondent-plaintiff within six months from the date of agreement to sale after receiving the remaining amount of Rs.15,000/-. It was mentioned in the agreement that Rs.65,000/-has been paid as advance to the appellant-defendant. As per the case of the respondent in the plaint the appellant-defendant had refused to execute the sale deed on 25.9.2006, as such, after giving notice the respondent-plaintiff had filed a suit for specific performance. 4. Learned Trial Court considering the evidence on record had come to conclusion that the respondent-plaintiff is entitled to get the sale deed executed in his favour and, as such, had decreed the suit. The first appeal preferred by the appellant-defendant was dismissed on merit. The instant second appeal has been filed thereafter. 5. Learned counsel for the appellant-defendant submits that in fact the respondent-plaintiff is involved in money lending business. The appellant had taken a loan of Rs.15,000/-from him for the treatment of his ailing wife. The said amount had become Rs.45,000/-within one year and the respondent-plaintiff had exerted undue pressure on the appellant and under threat he had executed the agreement to sale dated 10.10.2005. It is submitted that the appellant had returned Rs.65,000/-to the respondent and had filed an application dated 18.3.2006 before the Sub-Registrar in which respondent had made signature accepting the return of Rs.65,000/- to him. 6. It is submitted that the appellant had returned Rs.65,000/-to the respondent and had filed an application dated 18.3.2006 before the Sub-Registrar in which respondent had made signature accepting the return of Rs.65,000/- to him. 6. Submission of learned counsel for the appellant is that the agreement to sale was a conditional agreement and since the alleged amount of advance i.e. Rs.65,000/-which was paid to the appellant was returned by him to the respondent as such there was no question of execution of sale deed in favour of respondent-plaintiff. It is submitted that the learned trial court as well as lower appellate court has failed to consider the evidence on record and have wrongly come to conclusion that the respondent-plaintiff is entitled to get the sale deed executed in his favour with respect to the land in question on the basis of agreement to sale dated 10.10.2005. 7. I have considered the submissions made by learned counsel for appellant and gone through the records. 8. Learned Trial Court while deciding the suit for specific performance filed by respondent-plaintiff had framed certain issues, English translation of the same are given as under:- "1. Whether the defendant has executed an agreement and got it registered after obtaining an advance amount of Rs.65,000/-for purchase of the land in question from the plaintiff for execution of a sale deed on a consideration amount of Rs.80,000/-, if yes then effect? 2. Whether the plaintiff was always ready, willing and made efforts to perform his part of contract? 3. Whether the defendant has returned the advance money of Rs.65,000/- on dated 18.3.2006? 4. Whether the plaintiff has no cause of action to maintain the suit? 5. To which relief the plaintiff is entitled for?" 9. Learned Trial Court has decided each and every issue considering the evidence on record and considering the statements of witnesses, giving its own reasons. Learned Trial Court has come to conclusion that the respondent-plaintiff was ready and willing for getting the sale deed executed in his favour and had made all possible efforts in this regard but the appellant-defendant had failed to execute the sale deed in favour of respondent-plaintiff. Learned trial court has held that the appellant-defendant has failed to prove the contents of the letter dated 18.3.2006. Learned trial court has held that the appellant-defendant has failed to prove the contents of the letter dated 18.3.2006. The sole witness in whose presence the respondent-plaintiff is alleged to have made the signature accepting the return of advance amount of Rs.65,000/-has not been produced. It is informed by appellant-defendant that the said witness is dead. The appellant-defendant has not made any effort to get the alleged signature on the letter dated 18.3.2006 of respondent-plaintiff verified by an expert. Learned Trial court has observed that the respondent-plaintiff on the other hand has categorically denied his signature on the alleged letter dated 18.3.2006 and it is the case of the respondent-plaintiff that he has not received back the advance amount of Rs.65,000/-from the appellant-defendant. The learned trial court has come to conclusion that the appellant-defendant has failed to prove his case that he had returned the amount of advance received by him to the respondent-plaintiff as such the respondent-plaintiff is entitled to get the sale deed executed with respect to the land in question in his favour. 10. The lower appellate court while deciding the appeal filed by the present appellant has given its own reasons and findings after formulating the points of determination. The lower appellate court has noted that the agreement to sale is on record which does not indicate any such condition that the appellant-defendant had executed the agreement to sale in favour of the respondent-plaintiff in lieu of the loan taken by him from the respondent-plaintiff. The said agreement to sale does not stipulate any such condition that in case of return of the said loan amount the agreement to sale would automatically lapse. Lower appellate court has come to conclusion that the findings so recorded by learned trial court are just and proper and does not require any interference. The lower appellate court as such has dismissed the appeal upholding the findings recorded by learned trial court. 11. I do not find any infirmity or illegality in the findings so recorded by learned trial court as well as lower appellate court. 12. The lower appellate court as such has dismissed the appeal upholding the findings recorded by learned trial court. 11. I do not find any infirmity or illegality in the findings so recorded by learned trial court as well as lower appellate court. 12. So far as the contention of learned counsel for the appellant that the two courts below have not properly considered the evidence on record and have wrongly come to conclusion that the respondent-plaintiff is entitled to get the sale deed executed in his favour with respect to the land in question, suffice is to observe that the appellant-defendant has failed to prove his contention that the agreement to sale dated 10.10.2005 was executed under threat or durance and it was because of the money taken by the appellant from the respondent for the treatment of his wife and in case of return of the said amount of money the agreement to sale was liable to be annulled and stand automatically cancelled. The appellant has not been able to establish before the courts below that he had returned the amount of Rs.65,000/-which was paid to him as advance by the respondent-plaintiff. The burden in this regard was on the appellant to have proved before the courts below that the advance money was returned by the appellant to the respondent and he had duly received the same. The appellant has not been able to prove the contents of letter dated 18.3.2006 in this regard. 13. In view of above, I do not find any infirmity or illegality in the findings so recorded by the courts below. There are concurrent findings by the two courts below which are based on cogent evidence and are well reasoned. The substantial questions of law as proposed in the instant appeal do not involve any legal issue. The instant second appeal is devoid of merit and it is liable to be dismissed at the admission stage itself. 14. Second appeal is accordingly dismissed.