Decided on August 01,2013

Rahul Dev Shekhavat Respondents


PRAFULLA C.PANT, J. - (1.) THIS second appeal, preferred under section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 18.06.2001, passed by District Judge, Nainital, in Civil Appeal No. 30 of 2000, whereby said court has dismissed the appeal, and affirmed the judgment and decree for specific performance of contract passed by the trial court [Addl. Civil Judge (Sr. Div.) Nainital ] in Suit No. 86 of 1998.
(2.) HEARD learned counsel for the parties, and perused the lower court record. Brief facts of the case are that plaintiff filed Suit No. 86 of 1998 with the pleading that defendant (present appellant) is Bhumidhar of plot/khasra no. 91m, measuring 0.809 Hct. (approximately 29 acres) situated in Village kalyanpur of Tehsil Kashipur. It is further pleaded by the plaintiff that the defendant agreed to sell the aforesaid land for Rs. 1,20,000/ out of which Rs. 1,00,000/ was paid in advance as part of consideration, and Rs. 20,000/ were required to be paid at the time of the execution of the sale deed. It is further pleaded in the plaint that a registered agreement dated 03.06.1996 was executed between the parties, and the sale deed was to be executed by 25.05.1998. It is also averred by the plaintiff in the plaint that he was ready to get the sale deed executed by making payment of Rs. 20,000/. It is further pleaded that the plaintiff requested the defendant several times to execute the sale deed but he (defendant) avoided the execution. On this, the plaintiff got served the notice on the defendant to appear on 25.05.1998 before the Sub Registrar to execute the sale deed but he (defendant) did not turn up. It is alleged that the plaintiff remained present in the office of the SubRegistrar from 10:00am to 5:00 pm., to get executed the sale deed. With these pleadings plaintiff sought relief of specific performance of contract.
(3.) THE defendant contested the suit, and filed his written statement. He denied having executed any agreement of sale. The defendant alleged that actually he took loan of Rs. 60,000/ on interest @ 2% per month on 03.06.1996 from the plaintiff, and returned amount of Rs. 65,000/ to him. The defendant denied that plaintiff was ready and willing to perform his part of contract.;

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