SWATANTER KUMAR,J - (1.) THIS regular second appeal is directed against the judgment of the first Appellate Court dated 29.3.2000 affirming the findings in relation to fact and law both.
(2.) IN order to show that the present appeal involves substantial questions of law, justifying admission of this appeal, learned counsel for the appellant contended :- i) In the facts and circumstances of the case, the Courts below ought to have granted alternative relief for recovery of money and the decree for specific performance as passed by the courts below are not sustainable; ii) The agreement was not signed by the vendee and as such it is not an agreement enforceable in law; iii) The Courts have misconstrued the evidence on record including the statement of the appellant herein. Resultantly, the findings recorded by the Courts below are patently erroneous; iv) The agreement is vague and does not specify the land which was sought to be sold under the terms of the agreement. During the course of arguments learned counsel for the appellants produced before the Court the copies of the pleading and evidence recorded by the learned trial Court.
(3.) AT the very outset I must notice that none of the above said contentions are founded on the pleadings raised by the appellant in the written statement filed in the trial Court. In paragraph No. 5 of the preliminary objections taken in the written statement, it has been stated that the plaint is vague and the plaintiff has no cause of action. The written statement runs into three pages and the entire case of the defendant-appellant is pleaded in paragraph No. 1, where it is stated as under :- "That para No. 1 of the plaint as alleged is wrong and incorrect hence denied. The alleged agreement too is a forged and invalid document. In fact the answering defendant never entered into an agreement to sell the land in question in favour of the plaintiff. The alleged mutation of inheritance has already been sanctioned much earlier in 1970. In fact the defendant has taken loan from the plaintiff which the answering defendant has repaid with interest to the plaintiff. Now the plaintiff is taking undue advantage of the alleged agreement. Moreover, the alleged agreement is time barred and cannot be enforced. The answering defendant never delivered the possession of the land in suit to the plaintiff. The land in question is in joint possession of all the co-sharers." Rest of the paragraphs of the plaint have merely been denied for one reason or the other.;