SATISH KUMAR MITTAL, J. - (1.) THIS regular second appeal has been filed by the defendant against the judgment and decree passed by both the courts below vide which the alternative suit of the plaintiff (respondent herein) for recovery of Rs. 8,000/- by way of return of earnest money advanced to the defendant under the agreement in question was decreed.
(2.) THE plaintiff filed the present suit for specific performance qua the agreement dated 27.6.1979 Ex.P1 vide which the defendant agreed to mortgage his land measuring 19 bighas fully detailed in the head note of the plaint in favour of the plaintiff for a consideration of Rs. 8,000/-. At the time of execution of the said argument, the entire consideration of Rs. 8,000/- in cash was paid to the defendant. It was inter alia, mentioned in the agreement that possession of the land agreed to be mortgaged, was delivered to the plaintiff. It was further agreed that the defendant would return the requisite consideration of Rs. 8,000/-, as mentioned in the agreement, by 15.6.1980 and get back the disputed land or would execute regular mortgage deed in favour of the plaintiff in respect of the mortgaged land. In case the defendant failed to execute the mortgage deed in terms of the agreement, he was liable to pay the earnest money of Rs. 8,000/- paid to the defendant under the said agreement back with Rs. 2,000/- as damages. It was pleaded by the plaintiff that though it was mentioned in the agreement that the possession of the land was given to him but actually he was not put into the possession of that land and the same remained under the possession of the defendant. The plaintiff further pleaded that in spite of the registered notice given to the defendant for returning earnest money of Rs. 8,000/- advanced to him, he did not care to reply that notice. Hence, the instant suit was filed seeking specific performance of the agreement regarding mortgage deed of the land with an alternative prayer to return the earnest money of Rs. 8,000/- advanced to the defendant under the said agreement. Defendant contested the suit by pleading that he had neither executed any such agreement nor he received any consideration thereunder. He pleaded that as he did not agree to mortgage any land in favour of the defendant, therefore, question of delivering possession to the defendant did not arise at all. It was further pleaded that he and his father earlier executed an agreement on 1.6.1978 in favour of the son of the plaintiff but the amount under the said agreement was returned subsequently on 14.6.1979. It was also pleaded that a similar writing was made on 5.6.1979 and the amount under the said writing was also repaid to the plaintiff on 14.6.1979. It was specifically denied that the present agreement dated 27.6.1979 was executed by him at all.
(3.) ON the pleadings of the parties, the learned trial court framed the followed issues :- 1. Whether the defendant executed the impugned agreement regarding the mortgage of the disputed land and obtained a sum of Rs. 8,000/- as earnest money thereunder ? OPP 2. Whether the plaintiff has been ready and willing to perform his part under the impugned agreement ? OPP 3. Whether the impugned agreement is a forged and fictitious document and is the result of fraud, if so, its effect ? OPD 4. Whether there was any previous agreement between the parties, if so, the details of the agreement and its effect ? OPD 5. Whether the impugned agreement is void and illegal and not enforceable in the court, if so, its effect ? OPD 6. Relief. ;