SIDDHARTH,J. - (1.) Heard Sri. Arun Kumar Mishra, learned counsel for the appellant and Sri. Y. K. Sinha, Sri. Sudhanshu Pandey and Sri. Sanjay Maurya, learned counsel for the respondents This is plaintiffs' Second Appeal against the Judgment and Decree dated 21.11.2000, passed by Sri. Kripa Shankar, Ist Additional District Judge (Court No. 1), Gorakhpur in Civil Appeal No. 17/1999, whereby appeal has been allowed and Judgment and Decree dated 12.02.1999, passed by Sri. Alakh Narain, IInd Additional Civil Judge (Senior Division), Gorakhpur has been set aside and Original Suit No. 477 of 1991 (Smt. Shanti Mishra v. Samuel) has been dismissed with costs.
(2.) The plaintiff instituted an Original Suit No. 477 of 1991, praying for a decree of specific performance of contract of sale.
(3.) Plaintiff's case is that arazi no.1143, area 83 decimal, situated in Mohalla Basaratpur, Tappa, Kasba, Pargana Haveli, District Gorakhpur was owned by defendant; that defendant had incurred some loan and for repaying the same, he entered into an agreement to sell for total consideration of Rs. 10,000/- and paid Rs. 3,000/- in advance to the plaintiff; that remaining amount of Rs. 2,000/- was to be paid at the time of registration of agreement before the Registrar and it was agreed that after the permission from the competent authority, to be obtained by the defendant, plaintiff will execute sale deed within 3 years after taking the balance sale consideration; that plaintiff regularly enquired from defendant about permission of competent authority for sale, but defendant stated that he will himself intimate her about the same; that plaintiff came to know that defendant is trying to sell the land for higher price and therefore she increased the sale consideration to Rs. 45,000/- and paid Rs. 22,696/-; that plaintiff paid further amount of Rs. 8,000/- on 18.04.1987 of which defendant executed a receipt in presence of witnesses; that defendant was to get Rs. 15,000/- only from plaintiff and after stating his problem for payment of fees of her daughter, he further took amount of Rs. 11,000/- from plaintiff ; that plaintiff had been ready and willing to execute the sale deed but defendant was unwilling for the same and on account of refunding of excess amount of Rs. 11,696/- by defendant, suit was instituted by plaintiff.;