Decided on January 15,1965

DURGA Respondents

Referred Judgements :-



S.C. Manchanda, J. - (1.)THESE two appeals raise common contentions and they are disposed of by a single order. They are against the order of the District Judge dated, the 21st April, 1962 confirming the judgment and decree of the trial Court dated, the 3rd May 1960, decreeing the plaintiffs' suit for specific performance of the contract dated the 25th March 1955 and directing the defendant to execute the deed of sale in favour of the plaintiff and to get it registered within one month from the date of the decrees after taking from the plaintiffs the balance of the purchase money and in default the deeds of sale would be executed by the Court on behalf of the defendant after the plaintiffs have deposited the balance of the purchase money within the time to be specified,
(2.)THE plaint allegations were that the defendant was the owner and the Zamindar of the plots in dispute lying within the Municipal Limits of the town of Meerut. That the chief tenant was one Moti of all these plots who had sublet them to tenants, and on account of subletting the defendant had filed a suit against Moti as well as the sub-tenants under Section 171 of the U. P. Tenancy Act (Act XVII of 1939). That during the pendency of the said suit the defendant had entered into a contract for sale to the effect that he would execute the sale deed with respect to the plots in suit at a price to be worked out at the rate of Rs. 650.00 per Kacha Bigha within a period of one month after the decree for ejectment of the tenants. That a sum of Rs. 1000.00 was advanced as earnest money on condition that the said amount shall be returned to the plaintiff together with interest at the rate of 6% per annum in case the defendants were not able to secure the ejectment of the tenants and it was further agreed that if the defendant after the ejectment of the tenants was unwilling to execute the sale deed it would be open to the plaintiffs to obtain the execution of the sale deed through Court. It was further alleged that the defendant's suit for ejectment of the tenants was dismissed by the trial Court but on appeal to the Commissioner a decree for ejectment of the tenants was granted on the 14th September 1955. Against that decree the tenants went up in appeal and ultimately the Board of Revenue confirmed the Commissioner's decree for ejectment of the tenants, on 12-8-1958. Thereupon, the plaintiff's issued notices to the defendant to have the sale deed executed but to no effect. Hence the suit.
The defendant's case was that the agreement was conditional upon a decree of ejectment being obtained from the revenue Court and that there was no agreement between the parties that the defendant would be obliged to execute the sale deed if he was able to secure the decree for ejectment from an appellate Court. That he had to spend a sum of Rs. 2500.00in the litigation to eject the tenants and therefore, he was not bound to execute the deed of sale. Three issues were struck-

"(1) Whether the defendant had agreed to execute the sale deed only if the suit for ejectment was decreed by the particular trial Court and not by the appellate Court? (2) Whether the defendant had made a breach of contract as alleged? (3) To what relief if any is the plaintiff entitled?"

(3.)BOTH the Courts below have given concurrent findings deciding issue No. 1 in the negative and issue No. 2 in the affirmative. The findings that the intention of the parties was never that the agreement to sell would only be enforced if the suit against the tenants was decreed by the trial Court and that there was a breach of contract are prima facie findings of fact which cannot be interfered with in a second appeal. Even if they were questions of law the Court below has given good reasons for holding that the enforcement of the agreement of sale did not depend on the suit for ejectment against the tenants if decreed only by the trial Court. Therefore on the merits the appellant has no case.

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