- (1.) Heard Sri Vinod Kumar Upadhyay, learned counsel for the appellants and Sri Sanjay Kumar Pundir, learned counsel for the respondent.
(2.) These two appeals have been filed by the defendants before the trial court. It is an admitted fact that these appeals have been filed by the husband and wife respectively who had entered into an agreement to sale on 10. 01. 2005. It is also an admitted fact that plaintiff first filed a suit for permanent injunction bearing suit no. 98 of 2006 and subsequently that suit was withdrawn and suit for specific performance was filed which has been decreed in favour of the plaintiffs. Learned counsel for the appellants submits that these second appeals have been admitted on the following substantial questions of law namely; "(i) Whether the learned trial court is justified in decreeing the suit ignoring the provisions of Section 20(2)(a)(b) of the Specific Relief Act ? (ii) Whether the impugned judgment dated 25. 09. 2017 passed by the appellate court and dated 23. 05. 2016 passed by the trial court is based on proper appreciation of facts, evidence on record and consideration of relevant provisions of law? (iii) Whether the agreement to sale dated 10. 01. 2005 was duly and validly executed and registered by the defendant Chandra Prakas / Premvati afterreceiving consideration/earnest money of Rs. 2 lakhs and 3 lakhs respectively from the plaintiff?" Learned counsel for the appellants submits that both the courts below have erred in allowing the suits for specific performance overlooking certain basic facts namely; plaintiffs and defendants are known to each other and there was a relationship of trust between them. It is submitted that in the name of taking consent as a guarantor for a loan, plaintiffs were taken to the Office of Sub-Registrar but through mis-representation, agreement to sale dated 10. 01. 2005 was got executed. It is further submitted that there is no finding of payment of earnest money by the plaintiffs to the defendants. It is submitted that there is no material on record to show that plaintiff could arrange a huge sum of Rs. 5 lakhs involved in the two cases to be paid to the appellants and besides this, the trial court has erred in not appreciating the factum of readiness and willingness of the plaintiff. It is also submitted that it will be evident from the Khasra Entry available on record as Annexure-1 for the ''Fasli' year 1396 that i. e. the only source of livelihood of the plaintiff-Chandra Prakash and, therefore, both husband and wife could not have decided to alienate their sole source of livelihood on the same day rendering them helpless.
(3.) It is submitted that there was no reason for them to enter into an agreement as neither there was any need for money nor there was any such occasion like marriage of their child etc. necessitating the appellants to enter into an agreement to sale. It is further submitted that all the witnesses as have been produced by the plaintiff before the trial court are related to each other. It is further submitted that there is no evidence on issue no. 3 adduced and appreciated by the trial court and since an alternative relief especially looking to the fact that appellants would not have deprived themselves of their bread and butter, by alienating the complete parcel of land recorded in their names, court should have been slow in exercising the grant of discretionary relief as provided under Section 20 of Specific Relief Act.;