HEMANT GUPTA,J - (1.) THE defendant is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby the suit for specific performance of agreement of sale dated 12.7.2000, in respect of the land measuring 3 marlas, was decreed.
(2.) THE plaintiff filed the suit for specific performance of the aforesaid agreement on 15.6.2001, on the ground that out of the total sale consideration of Rs. 42,000/-, a sum of Rs. 38,900/- was paid as earnest money. The sale deed was to be registered on 11.1.2001 and that the plaintiff was ready and willing to perform his part of the contract, but the defendant did not get the sale deed executed. The plaintiff was present in the Tehsil Office, but the defendant did not appear. After serving a notice to the defendant calling upon him to get the sale deed registered on 1.6.2001, the plaintiff filed the present suit for specific performance. The learned trial Court, returned a finding that the agreement of sale is proved to be executed as well as the fact that the earnest money of Rs. 38,900/- was paid by the plaintiff. However, the relief of specific performance of the agreement was declined for the reason that the possession was not delivered to the plaintiff by the defendant, who along with his family members is residing in the house in question. It was held that the ends of justice would be met if the amount paid by the plaintiff as earnest money is refunded to the plaintiff with interest. The appeal against the said judgment and decree by the plaintiff, was accepted holding that failure to deliver possession is of no consequence as the possession can be taken by the plaintiff in execution of the decree and consequently the learned first Appellate Court, granted a decree for specific performance of the agreement.
(3.) WHEN the appeal came up for hearing before this Court on 9.2.2007, the defendant raised an argument regarding validity of the agreement itself. The appeal was admitted on the following substantial question of law, while granting stay of the execution of the decree :- "Whether the findings recorded by the Courts below in respect of execution of agreement of sale dated 12.7.2000 are sustainable in law ?" ;