- (1.) Original Suit No. 318/2006, Devendra Kumar Agnihotri v. Prakash Chandra Verma and Others was filed for the relief of specific performance of contract of sale of property of defendant in favour of plaintiff. This suit was decreed by the judgment dated 30.05.2011 of 2nd Addl. Civil Judge (S.D.)(/ACJM-II), Shahjahanpur. Against this judgment of trial court, Civil Appeal no. 92/2011, Prakash Chandra Verma and Others Vs. Devendra Kumar Agnihotri was preferred which was dismissed on merits by the judgment dated 16.09.2015 of the Additional District Judge, Court No.-4, Shahjahanpur, who had dismissed the appeal andconfirmed the findings of the trial court for specific performance of contract. Aggrieved by the judgment of the two courts below, present second appeal has been preferred by the two defendants of the original suit. Third defendant (defendant no.-1 of o.s.) has been impleaded as proforma respondent no.-2.
(2.) The registered deed of agreement to sell in question executed was between plaintiff as first party, and Prakash Chandra Verma (defendant no.-1) and Smt. Ram Kumari Verma (the mother of defendants) as second party to said contract. Before institution of original suit Smt. Ram Kumari Verma had died. All defendants are admittedly successors in interest and legal representatives of Smt. Ram Kumari Verma for disputed property. It is pertinent to mention that execution of registered deed of agreement to sell in question admitted by the parties. The defendant-appellant had taken a few factual points in their w.s. which were not proved, and the trial court as well as first appellate court had given concurrent findings of facts that plaintiff and defendant side had executed registered agreement to sell dated 10.10.2005 by which the Prakash Chandra Verma (defendant no.-1) and Smt. Ram Kumari Verma had taken advance consideration and agreed to execute registered sale-deed of disputed property after receiving remaining consideration. Thereafter plaintiff had been ready and willing to perform his part of contract but it was the defendants who had not executed sale-deed in spite of reminders and notice. With this findings both the courts below have confirmed the decree of specific performance of aforesaid agreement to sell.
(3.) So far factual aspect is concern, it was challenged by the defendants-appellants. A perusal of the record reveals that there has been consistent and concurrent finding of fact on above mentioned point. Therefore, execution of registered agreement to sell has been proved and it is also proved that plaintiff-respondent has been ready and willing to perform his part of the contract, but it could not be executed due to fault of defendant-appellants. Concurrent and apparently correct findings had been given by the trial court as well as the first appellate court in this regard. Such findings cannot be interfered in second appeal by way of re-appreciation of evidences.;