- (1.) THIS appeal, preferred by the plain tiff (present appellant) under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and de cree dated 19-12-1977, passed by learned District Judge, Dehradun in Civil Appeal No. 162 of 1976 and cross ob jection No. 55 of 1977, whereby the appeal and cross objections are dis missed, affirming the judgment and de cree dated 28-08-1976, passed in Suit No. 85 of 1975. The trial court had dis missed the suit for specific performance of contract and decreed for recovery of Rs. 2,500/- paid to the defendant as part consideration by the plaintiff and further directed that plaintiff should restore the possession of land in suit to the defend ant.
(2.) I heard learned counsel for the parties and perused the entire record. Brief facts of the case are that plaintiff-appellant filed suit for specific performance of agreement to sell land in question and in alternative for recov ery of damages from the defendant - re spondent. According to the plaint case, three brothers, namely Govind, Sobha and Ram Swaroop were bhumidhar of plot No. 488 in village Ajabpur Kalan in district Dehradun. The recorded area of said plot was 0. 37 acres. By way of ex ecution of three separate sale deeds, they transferred the land to Mohan Singh, Bhagwan Singh and defendant Prakashwati. Later, Mohan Singh trans ferred his share to Balbir Singh Sajwan, through a registered sale deed dated 12-04-1973. The three new owners parti tioned the property by making over east ern portion (area 0. 13 acres) to Balbir Singh, the middle portion (area 0. 12 acres) to Prakashwati (defendant) and remaining 0. 12 acres on the western side went to Bhagwan Singh. Thereafter, vide agreement dated 25-06-1973, Smt. Prakashwati agreed to sell the land, owned and possessed by her, to plain tiff Poorna Nand for a sum of Rs. 5. 000/ -. Sale deed in pursuance of said agree ment was to be executed by 25-06-1974 and one of the terms of the agreement was that vendor would get her share de marcated and the boundary walls erected around the same. Later, the period for execution of the sale deed was extended by 31-03-1975 as the de fendant failed to raise the boundary wall over land agreed to be sold. However, later on it was found that the land ac tually possessed by the defendant was only 0. 072 acres and not 0. 12 acres. The rest of the land of plot No. 488 was possessed by other two owners. Mean while, the plaintiff got possession of the said area of 0. 072 acres of land from the plaintiff, but sale deed remained to be executed. On this, the plaintiff served notice on the defendant for alleged vio lation of her part in executing sale deed and filed suit for specific performance of contract and in alternative recovery of the consideration paid by the plaintiff to the defendant. The defendant-respondent Prakashwati contested the suit but she admitted having executed agreement to sell 0. 12 acres of land to the plaintiff -appellant. However, she pleaded that consideration agreed to be paid was Rs. 6,000/ -. She further pleaded that the plaintiff took advantage of condition mentioned in the agreement regarding the measurement and demarcation of the plot and made Misrepresentation as to the boundary of the plots. On this ground it is pleaded by the defendant that she is not bound to execute the sale deed in favour of the plaintiff. It is also alleged by the defendant that defendant never refused to execute the sale deed or to sell the land owned by her i. e. 0. 12 acres, but the plaintiff wants that sale deed be executed only in respect of 0. 072 acres, for lesser consideration.
(3.) THE trial court after going through the pleadings of the parties, framed following issues : i) Whether, the defendant owned and possessed 0. 12 acres of land on the spot, agreed to be sold to the plaintiff ? ii) Whether, the plaintiff is bound to pay full agreed price of Rs. 6,0001-, even after the area of the plot found is less than the agreed one ? iii) Whether, the plaintiff is entitled to any reduction in price in proportion and damages for the land not available in possession with defendant ? iv) Whether, the defendant is enti tled to forfeit the amount of Rs. 2,500/- paid to her as advance amount of consideration ? Learned trial court, after record ing the evidence and hearing the parties, decided that it is not proved on the record that the defendant actually pos sessed 0. 12 acres of land, for which she agreed to transfer it to plaintiff. It fur ther held that plaintiff could purchase land in suit only for Rs. 6,000/- , whether the area is 0. 12 acres or less than that and the price cannot be reduced for the lesser area. Lastly, it is found that the plaintiff is entitled to recover the amount of consideration to the tune of Rs. 2,500/- from the defendant. With these findings, the suit for specific per formance of contract was dismissed and it is decreed for recovery of Rs. 2,500/- with the direction that the plaintiff should restore possession of the land back to the defendant.;