J.V. Gupta, J. - (1.) THIS Is Defendant's appeal against whom the decree for the recovery of Rs. 12,500/ - has been passed by the trial Court.
(2.) THE Plaintiff -respondent filed the suit on the allegations that the Defendant was the owner of the land described in the plaint. He entered into the agreement to sell 16 Kanals thereof on August 12, 1971. A sum of Rs. 12,500/ - was paid as the earnest money and the Defendant had agreed to execute the sale -deed by 15.8.2028 Bikar ni Samvat. The Plaintiff further paid Rs. 500/ - on August 23, 1971, and the Defendant delivered him possession under the agreement to sell. According to the Plaintiff, the Defendant had compromised an appeal in consolidation proceedings and the land agreed to be sold was allotted to some other person and the land described in the plaint was allotted to the Defendant. Thus, it was alleged that he had filed the suit for possession by way of specific performance of the agreement regarding the allotted land as the Defendant has refused to execute the sale deed. In the alternative, the Plaintiffs prayed for the recovery of Rs. 12,500/ - as part of the sale price already paid and also claimed Rs 12,500/ - as damages. The Defendant contested the suit inter alia on the plea that the land regarding which the agreement to sell was entered into had been allotted to some other persons and as such the Plaintiff could not file the suit for possession by way of specific performance of the agreement. It was also contended that the Plaintiff was not entitled to recover a part of the sale -price and the damages. It was further averred that he had received only a sum of Rs. 1,000/ - at the time of the agreement to sell and in any case according to the terms of the agreement, only a sum of Rs. 1000/ - was to be returned to the Plaintiff. On the pleadings of the parties, the trial Court framed the following issues: 1. Whether the land agreed to be sold has been allotted to some other person ? If so to what effect ? 2. Whether the land in suit was allotted in lieu of the land agreed to be sold ? If so to what effect ? Whether the agreements were executed only for Rs. 1,500/ - ? 3. WHETHER the Plaintiff was ready and willing to perform his part of the contract ? 4. IF issue No. 1 is not proved, whether the Plaintiff is entitled to the relief prayed for ? Whether the suit is not maintainable in the present form ? Under issue No. 2, the trial Court found that the land, in suit, was not allotted to the Defendant in lieu of the land described in the agreement to sell, Exhibit P 1. On the basis of the finding under issue No. 2, it was concluded under issue No. 1, that the Plaintiff could not apply for possession regarding the new land. Issue No. 3 was found against the Defendant. Issue No. 4 was decided against the Plaintiff as it was held that the Plaintiff was not ready and willing to perform his part of the agreement. Under issue No. 5, it held that since the agreement, Exhibit P. 1, had been frustrated by the change of ownership, the Plaintiff was only entitled to the return of Rs. 12,500/ -, which was a part of the sale -price paid by the Plaintiff. Consequently, the Plaintiff's suit was decreed for the recovery of the said amount. Dissatisfied with the same, the Defendant has come in appeal to this Court.
(3.) THE Learned Counsel for the Appellant contended that even if it be assumed that a sum of Rs 12,500/ - was paid by way of earnest money as recited in the agreement, Exhibit P. 1 and the document. Exhibit P. 2, even then the Defendant was entitled to the refund of Rs. 1000/ - only according to the terms of the agreement. Exhibit P. 1; particularly when it has been found that the Plaintiff was not ready and willing to perform his part of the contract. After hearing the Learned Counsel for the parties and going through the agreement, Exhibit P. 1 and the document, Exhibit P. 2, by which a further sum of Rs. 500/ - was paid, I am of the considered opinion, that the Plaintiff was entitled to a sum of Rs. 1,000/ - only by way of refund. In the agreement, Exhibit P. 1, it has been stipulated that in case the land agreed to be sold is given to some other person during consolidation proceedings, then the agreement to sell will stand frustrated and in that situation, the Plaintiff will be entitled to a sum of Rs. 1,000/ - only. It was also stipulated therein that in case the same land is allotted to the Defendant in consolidation proceedings and the Defendant fails to execute the sale -deed in favour of the Plaintiff, he will be liable to refund Rs. 12,000/ - by way of earnest money and a sum of Rs. 12,000/ - by way of damages, i.e., a total sum of Rs. 24,000/ -. Thus in these circumstances, it was rightly stipulated that in case the agreement becomes incapable of performance the Defendant will return only a sum of Rs. 1,000/ -. The contention raised on behalf of the Plaintiff that Rs. 1,000/ - were to be paid by way of damages in addition to the sum of Rs. 12,500/ - paid by him as earnest money is not borne out from the agreement, Exhibit P. 1. Thus, the Plaintiff was entitled to recover a sum of Rs. 1,000/ - only from the Defendant in the event of the agreement to sell having been frustrated. In paragraph 6 of the written statement filed on behalf of the Defendant, he categorically stated that according to the terms of the agreement, the Plaintiff was only entitled to a sum of Rs. 1,000/ - in the event of the frustration of the agreement.;