N. N. Mithal, J. - (1.) THESE are two connected appeals arising out of the cross suits one of which was filed by the appellant in the court of Munsif for cancellation of agreement of sale dated 16-2-1981 and the other suit was filed by the respondent in the court of Civil Judge for specific performance of the aforesaid agreement.
(2.) THE suit filed by the appellant was later got transferred to the court of Civil Judge and the two suits were thereafter decided together. THE suit for specific performance was made the leading case. THE trial court dismissed the appellant's suit and decreed the one filed by the respondent giving rise to two separate appeals one of which was filed in the High Court and the other one before the District Judge as the original suit in that case has been filed in the Manciples court. THE appellant then moved Civil Misc. Application No. 10461 of 1987 and prayed that the High Court should recall the appeal filed in the court of District Judge and it may be decided along with First Appeal No. 639 of 1986 filed against the decree for specific performance. THE aforesaid application was allowed on 7-4-1988 and consequently the appeal was withdrawn from the court of the District Judge and registered here as First Appeal No. 232 of 1988. THE appeal was connected with First Appeal No. 539 of 1986. This is how the two appeals have come up before us. Stated in brief the facts are; the appellant is bhumidhar of plot No. 99 having an area of 10 Bigha 8 Biswas 12 Biswansi. A registered agreement of sale is alleged to have been executed by him on 16-12-1981 for sale of his land to the respondent for a consideration of Rs. 30,000/-. Out of this a sum of Rs. 29,000/- is said to have been paid in advance while a further sum of Rs. 1000/- was paid to appellant at the time of registration of the agreement. The remaining consideration of Rs. 32,000/- was to be paid at the time of registration of the sale deed for which two years period had been agreed upon. According to the appellant he used to get his land cultivated on Batai and tbe respondent was cultivating it on the basis of an agreement. It was represented to him that the agreement being unregistered the same was not legally effective. The appellant was, therefore, persuaded to execute another agreement of Batai which should be registered. It was on the basis of this representation that he had agreed to execute the agreement. His case further is that he had never agreed nor intended to sell his land but the respondent taking undue advantage of his blindness and without reading over the same took his thumb impression by mis-representation. The appellant never intended to execute an agreement for the sale of his land in favour of - the defendant. He also denied having ever received Rs. 29,000/- from the respondent.
(3.) ON the respective pleadings of the parties the main points that arose for determination were as follows ; 1. Whether the appellant had conciously agreed to transfer the disputed land to the respondent, as alleged by the respondent ? 2. Whether the document dated 16-2-1981 had been obtained by fraud and misrepresentation and in the manner alleged by the appellant ? Both the parties have adduced documentary and oral evidence. Both of them examined four witnesses in support of their respective stands. The trial court has held that the agreement dated 16-2-1981 had been validly executed and that no fraud had been committed by the respondent. On these findings the trial court dismissed the appellant's suit and decreed the one filed by the respondent.;