S.G.SHAH, J. - (1.) THE appellant is original defendant No.2 whereas respondent No.1 is original plaintiff and respondent No.2 is original defendant No.1 in Special Civil Suit No.417 of 2010 before the Civil Court at Surat. They are referred in the same capacity herein also.
(2.) THE plaintiff has preferred the suit for cancellation of sale -deed in favour of defendant No.2 and for specific performance of agreement to sell in his favour. So far as details of suit properties are concerned, they are very well described in the application and also in the prayer clause. However, since there is no dispute with reference to the nature and details of the suit properties, their details are not reproduced except referring it as suit property. The plaintiff has also prayed for interim relief to restrain the defendants from further alienating the suit property in any manner or to create any third party right or to change the condition of the suit properties in any manner till the disposal of the suit. Such application at Exh.5 has been partly allowed by the impugned judgment and order dated 30.12.2010 whereby parties are directed to maintain status -quo of the suit properties. Being aggrieved by such order, defendant No.2, subsequent purchaser of the suit property, has filed the present appeal. The sum and substance of the plaintiff's case is to the effect that defendant No.1 has agreed to sell the suit properties to him for Rs.41 Lacs and accepted Rs.21 Lacs while executing the agreement to sell on 30.3.2010. It is also stated that pursuant to such agreement to sell, plaintiff has to pay remaining sale consideration of Rs.20 Lacs on or before 30.12.2010. However, on 3.4.2010, defendant No.1 has executed a registered sale -deed in favour of defendant No.2 and when plaintiff has issued a notice on 14.8.2010, calling upon defendant No.1 to execute the sale -deed pursuant to agreement to sell dated 30.3.2010, defendant No.1 has ignored such notice and, therefore, plaintiff has no option but to file a suit for cancellation of sale -deed and for specific performance of agreement to sell. It is also contended that pursuant to such agreement to sell dated 30.3.2010, possession of the suit property was handed over to the plaintiff.
(3.) WHEREAS defendants have resisted the suit contending that the agreement to sell is not genuine since plaintiff has never paid the huge amount of Rs.21 Lacs by such unregistered agreement to sell and that too in cash since plaintiff could not make the payment in cash as he is a businessman and that when there is a registered sale -deed in favour of defendant No.2, there is no reason to disturb the ownership and possession of the bonafide purchaser for value. However, so far as notice by plaintiff is concerned, it is averred in the reply that they were trying to settle the dispute amicably and, therefore, reply was not forwarded. So far as one affidavit regarding confirmation of sale -deed is concerned, it is contended that such affidavit is practically for confirmation of some other agreement to sell and not the agreement to sell under reference.;