MUNSHA SINGH Vs. KEHAR SINGH

JUDGEMENT

(1.) THIS Is Defendant's appeal against whom the decree for the recovery of Rs. 12,500/ - has been passed by the trial Court.

(2.) THE Plaintiff -respondent filed the suit on the allegations that the Defendant was the owner of the land described in the plaint. He entered into the agreement to sell 16 Kanals thereof on August 12, 1971. A sum of Rs. 12,500/ - was paid as the earnest money and the Defendant had agreed to execute the sale -deed by 15.8.2028 Bikar ni Samvat. The Plaintiff further paid Rs. 500/ - on August 23, 1971, and the Defendant delivered him possession under the agreement to sell. According to the Plaintiff, the Defendant had compromised an appeal in consolidation proceedings and the land agreed to be sold was allotted to some other person and the land described in the plaint was allotted to the Defendant. Thus, it was alleged that he had filed the suit for possession by way of specific performance of the agreement regarding the allotted land as the Defendant has refused to execute the sale deed. In the alternative, the Plaintiffs prayed for the recovery of Rs. 12,500/ - as part of the sale price already paid and also claimed Rs 12,500/ - as damages. The Defendant contested the suit inter alia on the plea that the land regarding which the agreement to sell was entered into had been allotted to some other persons and as such the Plaintiff could not file the suit for possession by way of specific performance of the agreement. It was also contended that the Plaintiff was not entitled to recover a part of the sale -price and the damages. It was further averred that he had received only a sum of Rs. 1,000/ - at the time of the agreement to sell and in any case according to the terms of the agreement, only a sum of Rs. 1000/ - was to be returned to the Plaintiff. On the pleadings of the parties, the trial Court framed the following issues:

(3.) THE Learned Counsel for the Appellant contended that even if it be assumed that a sum of Rs 12,500/ - was paid by way of earnest money as recited in the agreement, Exhibit P. 1 and the document. Exhibit P. 2, even then the Defendant was entitled to the refund of Rs. 1000/ - only according to the terms of the agreement. Exhibit P. 1; particularly when it has been found that the Plaintiff was not ready and willing to perform his part of the contract.