J.C.Gupta - (1.) -Heard Sri Faujdar Rai for defendant-appellant and Sri H. P. Tripathi for plaintiff-respondent.
(2.) THIS second appeal is by defendant against whom respondent filed suit for specific performance of an agreement of sale of Plot No. 74 situated in village Dhamapur Abdalpur, pergana and tehsil Soraon, district Allahabad. According to the plaintiff's case, the said agreement was executed by appellant and he had received a sum of Rs. 4,800 as earnest money and balance of Rs. 4,000 was paid before sub-registrar at the time of registration of agreement. He was always willing to perform his part of contract but the defendant was not coming forward to execute the sale-deed, hence plaintiff sent registered notice dated 26.2.1985 whereupon defendant refused to execute the sale deed. Left with no alternative, plaintiff-respondent filed the present suit. In his written statement, defendant-appellant denied the execution of the agreement and further took a plea that since the property in question stood mortgaged with U. P. Sahkari Land Development Bank, the property in question could not be transferred in favour of the plaintiff on account of bar created under Section 22 of the U. P. Co- operative Land and Development Banks, Act, 1964. On appraisal of evidence, the trial court recorded a categorical finding of fact that the agreement was executed by the defendant-appellant in favour of plaintiff-respondent. Defendant filed appeal and during the pendency of appeal, an additional issue was framed whether the property in dispute was mortgaged in the year 1981 by defendant in favour of U. P. Sahkari Land Development Bank, Soraon Branch and if so whether mortgage was still existing. If so, what was its effect. The issue was then remitted to the trial court for giving a finding thereon. After recording evidence of the parties, the trial court decided the said issue holding that the property in dispute was of course mortgaged with the said bank by the defendant but the mortgage stood redeemed as the entire loan along with interest has been paid to the bank.
(3.) THE lower appellate court on receiving the said finding invited objections of the parties and by the impugned judgment dismissed the appeal. Learned counsel for the appellant firstly submitted that as far as issue of execution of agreement in question is concerned, the trial court gave a cryptic finding. On going through the judgment of the trial court, I do not agree with the submission of the learned counsel. It is also significant to note that before the lower appellate court, learned counsel for the appellant made a contention that execution of agreement in question was not disputed. Be that as it may, it would further appear from the judgment of the lower appellate court that the learned Judge despite the above contention went through the evidence of the parties and affirmed the finding of the trial court that the agreement in question was duly executed by the defendant-appellant.;