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2020 DIGILAW 74 (MAD)

Rajareddy v. R. Krishna Reddy (died)

2020-01-08

G.K.ILANTHIRAIYAN

body2020
JUDGMENT : G.K. ILANTHIRAIYAN, J. Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree of the learned Principal District Judge, Dharmapuri at Krishnagiri dated 30.09.2004 in A.S. No. 49 of 2002 reversing the judgment and decree of the learned Subordinate Judge, Hosur dated 04.09.2002 in O.S. No. 408 of 1996. 1. This second appeal is directed as against the judgment and decree dated 30.09.2004 passed in A.S. No. 49 of 2002 on the file of the Principal District Court, Dharmapuri at Krishnagiri reversing the judgment and decree dated 04.09.2002 made in O.S. No. 408 of 1996 on the file of the Subordinate Court, Hosur. 2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court. 3. The case of the plaintiff in brief is as follows:- 3.1. The suit is filed for specific performance and delivery of possession of the suit schedule property. The defendants 1 to 4 agreed to sell the suit schedule property to the plaintiff for the total sale consideration of Rs. 73,875/- and executed a sale agreement dated 13.06.1993. On the same day, they also received a sum of Rs. 72,375/- as advance in the presence of the witnesses. They also agreed to receive the balance sale consideration of Rs. 1,500/- within four months at the time of the execution and registration of sale deed. 3.2. The mother of the defendants 1 to 4 and 6 viz. Neelamma was also entitled to her share in the suit schedule property. The 6th defendant was the minor, at the time of agreement for sale. Since their mother Neelamma was undergoing treatment in Bangalore, she was not available at the time of sale agreement. But it was assured by the defendants 1 to 4 that their mother would also join at the time of execution of sale deed. In respect of the 6th defendant, who was minor at the time of sale agreement, will be given larger share in other properties of their family and also assured that the 6th defendant will not create any problem. Since their mother was not available, the defendants 1 to 4 wanted time to complete the sale transaction, though the plaintiff was ready and willing with the balance sale consideration to register the sale deed. Since their mother was not available, the defendants 1 to 4 wanted time to complete the sale transaction, though the plaintiff was ready and willing with the balance sale consideration to register the sale deed. Thereafter their mother was hospitalized in Bangalore for her prolonged illness and she returned her village only few months before her death. She was critically ill and she was not in a sound mental health. Therefore, the defendants 1 to 4 postponed the registration and execution of the sale deed, due to their mother’s health position. As such, the plaintiff was not in a position to compel the defendants 1 to 4 to execute the sale deed, being a close family friend, though the plaintiff was ready and willing to perform his part of the contract as per the agreement. In the year 1995, the mother of the defendants 1 to 4 & 6 passed away. Thereafter, when the plaintiff approached the defendants 1 to 4 to perform their part of contract, they gave evasive replies and did not come forward to perform their part of contract. 3.3. While being so, the plaintiff received a summon in O.S. No. 8 of 1996 on the file of the Sub Court, Krishnagiri, filed by the defendants 1, 5 and 6 against the plaintiff and others for an alleged loss of income from the suit property, alleging that the plaintiff is in illegal occupation of the suit schedule property along with others. It is nothing but collusion with other defendants and they filed the suit, though the possession of the suit property was not handed over to the plaintiff even at the time of entering into sale agreement. Further it is also seen from the plaint in O.S. No. 8 of 1996, the defendants 1 to 4 and their mother were already executed sale deed on 19.09.1994 in favour of the fifth defendant in respect of the suit schedule property. The fifth defendant is none other than the brother of the mother of the defendants 1 to 4 and he has been quite aware of the sale agreement executed by the defendants 1 to 4 in favour of the plaintiff. Therefore, it is very clear that the defendants colluded each other and created alleged sham and nominal sale deed in order to defeat the plaintiff’s right and valid registered sale agreement. 3.4. Therefore, it is very clear that the defendants colluded each other and created alleged sham and nominal sale deed in order to defeat the plaintiff’s right and valid registered sale agreement. 3.4. The plaintiff further submitted that the defendants 1 to 4 have been delaying to perform on the part of their contract and also restored vexatious litigation denying the right of the plaintiff, by creating sham and nominal document. Therefore, the plaintiff caused legal notice on 09.05.1996 to the defendants 1 to 5 to call upon them to execute the sale deed as per the sale agreement, after receiving the balance sale consideration of Rs. 1,500/-. On receipt of the said notice, the defendants 2 to 4 sent their reply on 27.05.1996, in which, though they admitted the execution of sale agreement and also the reason for the delay in executing the sale deed in favour of the plaintiff, they stated that there are some dispute between them i.e. between the brothers to execute the sale deed. In any event, the dispute between the brothers cannot affect the right of the plaintiff for execution of sale deed. Further they stated that they have not executed any sale deed in favour of the fifth defendant on 19.09.1994 and they have gone to the Sub-Registrar Office to execute Joint Power of Attorney in favour of their brother i.e., the first defendant. They never received any sale consideration from the fifth defendant to sell the property. Therefore, the defendants 2 to 4 categorically denied the execution of sale deed in favour of the fifth defendant on 19.09.1994. 3.5. On behalf of the first defendant and others, they issued reply notice dated 01.06.1996, with false allegations and it gave different picture and denying the very execution of sale agreement itself. It also clearly shows that the defendants 2 to 4 never instructed his counsel to issue notice on behalf of them. The reply notice dated 27.05.1996 on behalf of the defendants 2 to 4 is very clear that they categorically denied the execution of sale deed in favour of the fifth defendant herein. Therefore, the alleged sale deed dated 19.09.1994, executed in favour of the fifth defendant is not valid one and the fifth defendant cannot considered as a bonafide purchaser for valid sale consideration. 3.6. Therefore, the alleged sale deed dated 19.09.1994, executed in favour of the fifth defendant is not valid one and the fifth defendant cannot considered as a bonafide purchaser for valid sale consideration. 3.6. Further submitted that the sixth defendant has now become major and she has also been impleaded as defendant in the suit, in order to avoid multiplicity of proceedings. In respect of her 1/5th share remains unaffected. The plaintiff prays that the sale deed may be executed by specific performance of the agreement with regard to remaining 4/5 share of other defendants, the plaintiff be permitted to workout his remedy by filing suit for partition later. Hence, the suit for specific performance and delivery of possession of the suit property. 4. Resisting the same, the first defendant filed written statement and the same has been adopted by the defendants 5 & 6 also. They completely denied the entire avernments made in the plaint and the execution of the sale agreement on 13.06.1993 and also receipt of advance of Rs. 72,375/- on the date of agreement. Even assuming that the sale agreement was executed by them, her mother was quite hale and healthy and she never went to Bangalore for treatment. Therefore, the plaintiff did not approach the Court with clean hands. Even according to the plaintiff, the time of contract was fixed as within a period of four months and the plaintiff did not take any steps to perform their part of contract as per the alleged sale agreement. According to the plaintiff, their mother died in January 1995, whereas in the earlier notice he sated that she died in the year 1994, as such the entire suit is filed with false claim: 4.1. In fact, the defendants 1, 5 and 6 filed suit in O.S. No. 8 of 1996 on the file of the Sub Court, Krishnagiri, for recovery of damages of Rs.41,200/- on account of the illegal acts carried by the plaintiff and others in respect of the suit property. Thereafter, the said suit was transferred to the Subordinate Court, Hosur and renumbered as O.S. No. 352 of 1996. In fact, the fifth defendant purchased the suit property by a registered sale deed dated 19.09.1994 vide document No. 1661/1994 in the office of the Sub-Registrar Office, Denkanikotta, for valid sale consideration. Therefore, the vendor viz. Thereafter, the said suit was transferred to the Subordinate Court, Hosur and renumbered as O.S. No. 352 of 1996. In fact, the fifth defendant purchased the suit property by a registered sale deed dated 19.09.1994 vide document No. 1661/1994 in the office of the Sub-Registrar Office, Denkanikotta, for valid sale consideration. Therefore, the vendor viz. the fifth defendant is entitled to get entire suit property as absolute owner. The fifth defendants has no knowledge about the alleged agreement of sale between the plaintiff and defendants 1-4. They also completely denied the execution of sale agreement and as such no question of plaintiff’s willingness and readiness to perform his part of the contract. 4.2. In fact, from the year 1995, the fifth defendant was cultivating the suit property and in such circumstances, the plaintiff along with others created problem and as such they filed suit. On receipt of summon from the said suit, the present suit has been filed by the plaintiff. If at all any sale agreement as alleged by the plaintiff, the plaintiff would have taken appropriate steps to execute the sale agreement dated 13.06.1993. Further stated that the plaintiff issued notice on 09.05.1996 for which, by a reply dated 01.06.1996, suitably replied to the plaintiff. The defendants 1, 5 and 6 did not know anything about the reply sent by the defendants 2 to 4 for the notice issued by the plaintiff. They also denied the allegations that the defendants 2 to 4 were taken by the fifth defendant to the Sub-Registrar Office to execute general Power of Attorney in favour of the fifth defendant. In fact all of them went to the Sub-Registrar Office and also executed sale deed in favour of the fifth defendant on 19.09.1994. 5. The defendants 2 to 4 filed separate written statement stating that they along with the first defendant executed agreement for sale on 13.06.1993, to sell the suit property in favour of the plaintiff. The first defendant being the elder brother, he received the entire advance amount of Rs. 72,375/- and agree to execute the sale deed in favour of the plaintiff on receipt of balance sale consideration of Rs. 1,500/-. On that point of time, their mother was sick and as such they were not able to execute the sale deed in favour of the plaintiff. 72,375/- and agree to execute the sale deed in favour of the plaintiff on receipt of balance sale consideration of Rs. 1,500/-. On that point of time, their mother was sick and as such they were not able to execute the sale deed in favour of the plaintiff. The first defendant never shared the advance amount with the defendants 2 to 4 and also did not spend any single penny for their mother’s treatment: 5.1. The first defendant also met with an accident and as such, he was in need of fund and to look after their mother and hence the defendants 2 to 4 executed power of Attorney in favour of the first defendant. He used to get advice from the fifth defendant, being maternal uncle and on their instructions, the defendants 2 to 4 also went to the Sub-Registrar Office and executed Power of Attorney in favour of the first defendant. On that day, no sale consideration was received from the fifth defendant. They created sale deed in respect of defendants 2 to 4 in favour of the fifth defendant. They further stated that if their shares deposited in their favour, they are ready to execute the sale deed in favour of the plaintiff. 6. On the side of the plaintiff, they examined PW-1 to PW-3 and were marked Ex.A.1 to Ex.A.4. On the side of the defendants, they examined DW-1 to DW-4 and were marked Ex.B.1 to Ex.B.6. Based on the material produced on record and both the oral and documentary evidence adduced by the respective parties and also the submissions made, the trial Court decreed the suit in favour of the plaintiff holding that the defendants 1 to 4 are liable to execute sale deed in favour of the plaintiff, in respect of their share i.e. 4/6. After execution of the sale deed by the defendants 1 to 4, the plaintiff has to file recovery of possession by filing partition suit, since the mother of the defendants 1 to 4 and the sixth defendant are not parties to the agreement of sale. In respect of their share, the fifth defendant is entitled to the suit schedule property as per the sale deed in his favour. In respect of their share, the fifth defendant is entitled to the suit schedule property as per the sale deed in his favour. Aggrieved by the same, the fifth defendant alone filed appeal suit in A.S. No. 49 of 2002 and the first appellate Court reversed the findings of the trial Court and dismissed the suit filed by the plaintiff. Aggrieved by the same, the plaintiff preferred this present second appeal. 7. At the time of admission of this second appeal on 29.08.2005, the following substantial question of law were formulated for consideration:- “(a) When the defendants 1 to 4 who are parties to the suit agreement did not dispute the exeuction and the consideration passed thereon and consequently the admitted facts need not be proved, whether the lower appellate Court is correct in rejecting the suit agreement on the ground that the plaintiff did not establish the execution of the suit agreement? (b) When the defendants 2 to 4 dispute the execution of the sale deed in favour of the 5th defendant who is their maternal uncle and therefore the burden is on the 5th defendant to prove the execution of the sale deed in his favour whether the lower appellate Court is correct in upholding the said sale deed when he failed to discharge his burden in this regard.” 8. Heard Mr. J. Hariharan, learned counsel appearing for the appellant/plaintiff and Mr. V. Raghavachari, learned counsel appearing for the respondents 8 to 12/legal heirs of the fifth defendant. Though notices have been served to the respondents 2 to 6/defendants 1 to 4, 6, none appeared on behalf of them. 9. The plaintiff filed a suit for specific performance as against the defendants. The case of the plaintiff is that the defendants 1 to 4 & 6 are brothers and sisters and the sixth defendant was the minor at the time of execution of the sale agreement. Their mother viz. Neelamma was sick at the time of execution of the sale agreement. All the defendants agreed to sell the property for the sale consideration of Rs. 73,875/- and also received a sum of Rs. 72,375/- and executed agreement for sale on 13.06.1993, which was marked as Ex.A.1. The time for performing their part of contract fixed as four months. Neelamma was sick at the time of execution of the sale agreement. All the defendants agreed to sell the property for the sale consideration of Rs. 73,875/- and also received a sum of Rs. 72,375/- and executed agreement for sale on 13.06.1993, which was marked as Ex.A.1. The time for performing their part of contract fixed as four months. Though the plaintiff was ready and willing to pay the remaining sale consideration and ready to execute sale deed, the defendants 1 to 4 failed to execute the sale deed. They dragged the execution of sale deed for the reasons that the mother of the defendants 1 to 4 and 6 was fell in ill and she was admitted in the hospital at Bangalore. They are also being the close friends, the plaintiff did not take any steps to execute the sale deed in time as per the sale agreement. In the mean time, the first respondent, who is the fifth defendant in the suit, purchased the suit property from the defendants 1 to 4 by a registered sale deed dated 19.09.1994. 10. While being so, to the shock and surprise, the plaintiff received summons in O.S. No. 8 of 1996 on the file of the Sub Court, Krishnagiri, filed by the defendants 1, 5 and 6, as against the plaintiff and others for claiming damages in respect of the very same suit schedule property. Subsequently, the said suit was transferred to the file of the Subordinate Court, Hosur, and renumbered as O.S. No. 352 of 1996 and pending for trial. Thereafter, the plaintiff came to understand that the suit schedule property was sold out in favour of the fifth defendant, who is none other than own maternal uncle of the defendants 1 to 4 and 6, as such the plaintiff caused legal notice on 09.05.1996. On receipt of the same, the defendants 2 to 4 issued reply notice dated 27.05.1996, admitting the execution of sale agreement. Thereafter on 01.06.1996, the first defendant had issued separate reply notice denying the very execution of the sale agreement. 11. The first defendant filed separate written statement and the defendants 2 to 4 were filed separate written statement. The written statement of the first defendant adopted by the defendants 5 & 6 in this suit. Thereafter on 01.06.1996, the first defendant had issued separate reply notice denying the very execution of the sale agreement. 11. The first defendant filed separate written statement and the defendants 2 to 4 were filed separate written statement. The written statement of the first defendant adopted by the defendants 5 & 6 in this suit. The first defendant completely denied the very execution of the sale agreement and he stated that the defendants 1 to 4 executed sale deed in favour of the fifth defendant and he is in possession and enjoyment of the suit property. In fact, while cultivating the suit property, the plaintiff and others disturbed their possession and as such the defendants 1, 5 and 6 are constrained to file above mentioned suit. 12. The defendants 2 to 4 filed separate written statement and they admitted the execution of sale agreement in favour of the plaintiff. But they were not received their respective shares from the first defendant, who is the elder brother. They are ready to execute the sale deed on condition that their respective share shall be separately deposited in their account. Further they stated that they were called upon to execute general Power of Attorney in favour of the fifth defendant by the first defendant and their signatures were obtained only to execute the Power of Attorney. Thereafter, they found that the sale deed was executed in favour of the fifth defendant, in respect of the suit schedule property. 13. The trial Court found that the sale agreement is a true and genuine and decreed the suit in favour of the plaintiff, insofar as the shares of the defendants 1 to 4 are concerned. Since at the time of filing of the suit, the sixth defendant was minor and their mother was not party to the suit, the plaintiff is not entitled for the relief of specific performance in respect of the shares of their mother and sixth defendant in the suit schedule property. The fifth defendant is entitled for the share of the mother and the sixth respondent alone in the suit schedule property. The fifth defendant is not entitled for the shares of the defendants 1 to 4. 14. Before the first appellate Court, the fifth defendant alone filed appeal suit. Though the trial Court decreed the suit as against the defendants 1 to 4, they did not prefer any appeal suit. The fifth defendant is not entitled for the shares of the defendants 1 to 4. 14. Before the first appellate Court, the fifth defendant alone filed appeal suit. Though the trial Court decreed the suit as against the defendants 1 to 4, they did not prefer any appeal suit. The first appellate Court dismissed the very suit itself and allowed the appeal in favour of the fifth defendant. Even before this Court, though notices were served to the defendants 1 to 4, 6, they were not appeared through counsel or in person. The legal heirs of the fifth defendant alone appeared and contested the appeal. 15. Admittedly, the agreement was executed only by the defendants 1 to 4. There is no avernments that the mother of the defendants 1-4 and the sixth defendant had the knowledge about the agreement for sale. PW-1 also admitted that at the time of execution of agreement, the mother of the defendants 1 to 4, 6 was very much available in the village and he did not know about which hospital she had taken treatment. Further he also categorically admitted that the plaintiff did not take any steps to get signature of their mother in the agreement for sale. There are contradiction between the evidence of PW-1 as well as the agreement for sale, since according to the sale agreement, there is balance sale consideration of Rs. 1,500/- whereas PW-1 stated in his evidence as Rs. 1,200/-. PW-2 who was witnessed to Ex.A.1 also not supported the case of the plaintiff, since he doesn’t know about who was present at the time of execution of sale agreement. 16. Even at the time of execution of sale agreement, the plaintiff knows that the defendants 1 to 4 alone are not the absolute owners of the property. Therefore, the mother and the sixth defendant, who was minor at the time of execution of the sale agreement, are also share holders in the suit property. Even then, the said agreement for sale was executed only by the defendants 1 to 4. Though they gave assurance to satisfy the sixth defendant by paying suitable amount, the agreement for sale should be executed by all the share holders of the suit schedule property. Therefore the version of the plaintiff is not believable one, as projected by him. 17. Though they gave assurance to satisfy the sixth defendant by paying suitable amount, the agreement for sale should be executed by all the share holders of the suit schedule property. Therefore the version of the plaintiff is not believable one, as projected by him. 17. The agreement for sale was executed on 13.06.1993 and the time was also fixed as four months for performing their part of contract respectively. Even after completing the four months, the plaintiff did not take any steps to execute sale deed as against the defendants 1 to 4. Further only on receipt of summons in O.S. No. 8 of 1996 from the Subordinate Court, Krishnagiri, the plaintiff caused legal notice and filed the present suit for specific performance. According to the said agreement for sale, the total sale consideration was fixed as Rs. 73,875/- in which on the date of agreement itself, a sum of Rs. 72,375/- was received by the defendants 1 to 4. When being so, the substantial sale consideration was paid and remaining sale consideration is Rs. 1,500/- only. Even then, the plaintiff was not put in possession of the property and the plaintiff failed to take any steps as against the defendants 1 to 4, to perform their part of contract as per the agreement for sale. 18. Though the defendants 2 to 4 agreed to execute the sale deed in favour of the plaintiff, there was interse dispute between the brothers. The plaintiff waited for more than three years from the date of agreement and on receipt of the summon from the suit filed by the defendants 1, 5, 6, the present suit was filed for specific performance. The explanation given by the plaintiff cannot be believable one by going through the evidences. In fact, the signature of the defendants 1 to 4 were obtained in the blank stamp papers and fabricated the sale agreement in favour of the plaintiff and in respect of the said allegation, the fifth defendant lodged complaint before the concerned Police Station as well as the Revenue Authorities. In this regard, in the year 1995, the first defendant also lodged complaint and the same was categorically admitted by the plaintiff (PW-1). He was also enquired by the concerned Inspector of Police, Thali Police Station in the month of November, 1995. In this regard, in the year 1995, the first defendant also lodged complaint and the same was categorically admitted by the plaintiff (PW-1). He was also enquired by the concerned Inspector of Police, Thali Police Station in the month of November, 1995. When the said fact was categorically admitted by the plaintiff (PW-1), it need not be proved by other evidence. Therefore, the very agreement itself is not believable one, and the first appellate Court discussed the above fact in very detailed manner and set aside the judgment and decree of the trial Court. As such, there is absolutely no valid reason to interfere with the findings of the first appellate Court and the first appellate Court rightly reversed the judgment and decree passed by the trial Court. 19. In respect of the refund of advance amount, the learned counsel appearing for the appellant/plaintiff by filing a memo relied upon the judgment reported in Fathima Majeed vs. Subhapratha Ravikumar, 2008 (4) CTC 494 and submitted that as to refund of advance amount by the Court, in the absence of specific prayer in the plaint that the advance amount can be refunded by the Court on the ground of equity, even though there is no specific prayer in the plaint. The Hon’ble Division Bench of this Court held as follows:- “11. It is true, the plaintiff has not asked for any alternative relief of recovery of money. Though it was not asked for, since it is for the relief of specific performance, on the ground of equity, the Court can order so. Accordingly, the defendant is directed to make payment of Rs. 7,02,876.25 (Rupees seven lakhs two thousand eight hundred and seventy six and twenty five paise only) to the plaintiff within a period of three months and those amount carries interest at the rate of 12% per annum from the respective dates of payments by the plaintiff to the defendant, till realisation. On payment of the entire amount, as stated above, the plaintiff is directed to hand over all the title deeds, which were originally handed over to her, to the defendant. The judgment and decree made in C.S. No. 733 of 1995 are set aside. Accordingly, this O.S.A. is disposed of. No costs.” 20. On payment of the entire amount, as stated above, the plaintiff is directed to hand over all the title deeds, which were originally handed over to her, to the defendant. The judgment and decree made in C.S. No. 733 of 1995 are set aside. Accordingly, this O.S.A. is disposed of. No costs.” 20. In the another judgment reported in N. Sekaran and Others vs. C. Rajendran, 2017 (5) LW 46 our Hon’ble Division Bench of this Court held as follows:- “13. The legal position enumerated above would only indicate that in an agreement of sale, where money is paid only as part of sale price, the forfeiture clause will be treated as having the effect of penalty. Further, even in the absence of a prayer for refund of the advance sale amount by the plaintiff, with a view to render complete justice, the Court is empowered to mould the relief and to issue appropriate direction to the defendant for refund of the advance sale price. Notwithstanding the above legal position, in the present case, as rightly pointed out by the learned counsel for the plaintiff, on 15.02.2009 when the plaintiff and the defendants have entered into an agreement of sale under Ex.A1, the defendants have not acquired any right, title or interest over the suit property and on that date they are only agreement holders in respect of the suit property. Further, admittedly, even after the expiry of the time stipulated in the agreement of sale under Ex.A1, it is only the first defendant who has acquired a right over the suit property along with the other co-owners and therefore, the plaintiff cannot be blamed for not performing his part of the obligations contained under the agreement of sale dated 15.02.2009. Furthermore, in such a circumstances, the conditions incorporated in the agreement of sale dated 15.02.2009 will not bind the plaintiff in any manner or such conditions will confer any right to the defendants to forfeit the advance sale amount paid by the plaintiff. In such circumstances, we feel that the trial court is wholly justified in issuing a direction to the defendants to refund the advance amount of Rs. 28,77,000/- to the plaintiff. At the same time, we find that the rate of interest of 12% per annum, at which the defendants were directed to pay the advance amount of Rs. In such circumstances, we feel that the trial court is wholly justified in issuing a direction to the defendants to refund the advance amount of Rs. 28,77,000/- to the plaintiff. At the same time, we find that the rate of interest of 12% per annum, at which the defendants were directed to pay the advance amount of Rs. 28,77,000/- is not warranted and instead the defendants shall be directed to pay the amount of Rs. 28,77,000/- with interest at the rate of 7.5% per annum.” 21. Admittedly, the plaintiff did not ask for alternative prayer of refund the advance amount paid by the plaintiff to the defendants 1 to 4 herein. It is seen from the reply notice sent by the defendants 2 to 4, they categorically admitted the receipt of advance of Rs. 72,375/- on 13.06.1993. Though the prayer of specific performance relief denied by this Court, on the ground of equity, the Court can order the alternative relief of recovery of money. Therefore, even in the absence of prayer of refund of advance amount, with the view to render complete justice, this Court empower to mold the relief and issue appropriate direction to the defendants 1 to 4 for refund of the advance sale price. 22. In view of the above discussion, this Court is of the considered opinion that no substantial question of law are involved in this appeal. Be that as it may, all the substantial questions of law formulated by this Court are answered as against the plaintiff, insofar as the prayer of specific performance and possession of the suit property. Insofar as the return of advance amount, though there is no prayer for alternative relief, this Court molded the relief and directed the defendants 1 to 4, to return the advance amount paid by the plaintiff i.e. a sum of Rs. 72,375/- (Rupees seventy two thousand three hundred and seventy five only) with interest of 7.5% per annum, to the plaintiff within a period of three months from the date of receipt of copy of this Order. 23. With the above directions, this Second appeal is disposed of. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.