(1.) THIS appeal preferred under Section 96 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 05.10.2005, passed by Additional District Judge/1st Fast Track Court, Roorkee, in Original Suit No. 126 of 1994, whereby said court has decreed the suit for specific performance of contract.
(2.) HEARD learned counsel for the parties, and perused the lower court record.
Brief facts of the case are that plaintiff/respondent filed a suit, before the trial court with the pleading that the properties A and B in suit were exclusively owned by the defendant/appellant on the basis of partition dated 22.06.1966. In respect of the property A, the defendant agreed with the plaintiff to sell him the same for an amount of Rs. 40,000/- in October, 1988, after accepting Rs. 10,000/- as part of consideration. The agreement dated 05.10.1988, was executed between the parties to this effect, after making further payment of Rs. 20,000/- by the plaintiff/respondent to the defendant/appellant. The sale deed was agreed to be executed by 31st of August, 1989. The plaintiff/respondent remained ready and willing to perform his part of contract. But on 31.08.1989, the defendant/appellant requested further time for execution of the sale deed. According to the plaintiff, the defendant expressed desire to sell the property B also, and executed another agreement dated 11.09.1989, after accepting Rs. 5000/- as the part of consideration. In terms of said agreement, the sale deeds were to be executed by 10.09.1990. But defendant did not keep the promise. On 30th of November, 1989, defendant asked for further Rs. 15,000/- and issued a receipt after the plaintiff paid the said sum. When the plaintiff requested before 10th of September, 1990, to the defendant to execute the sale deeds, he (defendant) started saying that the property is not of the value less than Rs.1.5 lacs. After some negotiations, on03.02.1991, it was agreed that the plaintiff shall pay to the defendant Rs. 64,000/- cash, and another agreement dated04.02.1991, was executed before the Sub-Registrar, in which, including the earlier payment, the defendant accepted before the Sub-Registrar, that he had received sum of Rs. 1 lakh. However, even by 03.02.1992, the last date of execution of sale deed, the defendant did not perform his part of duty. The plaintiff remained present in the office of Sub-Registrar, to get executed the sale deed, after giving due notice to the defendant to appear before the Sub- Registrar, on 03.02.1992. When the defendant failed to execute the sale deed, a suit was filed by the plaintiff for specific performance of contract.
The defendant/appellant contested the suit and filed his written statement before the trial court. He pleaded that property in question, was not exclusively owned by him, and the suit is bad in non-joinder of necessary party. He denied having received any amount of consideration, and execution of alleged agreements of sale. He alleged that documents relied by the plaintiff are forged. The defendant further pleaded in the written statement that the plaintiff expressed his desire to participate with the defendant in the joint business of stationery supply and invested Rs. 10,000/- only. The alleged documents were the documents of security. It is also pleaded that the value of the property is much more than for what the defendant is said to have agreed to sell. It is also pleaded in the written statement that the property is of joint Hindu family. It is also pleaded that in another suit filed by co-owner Naveen Kumar against the defendant, the order of status quo has been passed, as such, the suit was not maintainable.
(3.) ON the basis of the pleading of the parties, as many as sixteen issues were framed in by the trial court. Parties filed their documentary evidence, and adduced the oral evidence. The trial court after hearing the parties, came to the conclusion that the defendants had executed the alleged agreements of sale in favour of the plaintiff and he did receive the part of consideration, as pleaded by the plaintiff. Relying on the registered agreements and the receipts, the trial court found that plea of the defendant that he did not execute the agreement of sale of property A-B is incorrect. The trial court further found that the property had already been partitioned in 1966, and it had lost the character of the Hindu undivided family property. It also found that the finding of issue No. 6 relating to the non joinder of Naveen Kumar as party had already been decided by the trial court, as preliminary issue on 17.03.1997, in favour of the plaintiff. Accordingly, the suit was decreed for specific performance of contract vide judgment and decree dated 05.10.2005, by the trial court.
The impugned decree passed in suit no. 126 of 94 has been challenged on the ground that the decree is against the law, and evidence on record. It is also alleged in the grounds of appeal that the trial court, while giving finding on issue No.1 has accepted a new case, which was not pleaded by any of the parties. Referring to various documents, it is alleged that the same were read erroneously. It is also alleged that the suit was barred by Section 20 of Specific Relief Act, and the law of Limitation.;