- (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 21.09.2011 passed by Additional District Judge No.1, Sri Ganganagar, whereby, the appeal filed by the appellant against judgment and decree dated 09.12.2004 passed by Civil Judge (Senior Division), Sri Ganganagar has been dismissed. The facts in brief may be noticed thus : the respondents - plaintiffs filed a suit for specific performance of contract dated 03.08.1993 against the respondents, inter alia, with the averments that the plaintiff and defendant No.1 - Jagtar Singh were father and son and land owned by him ad measuring 2 Bigha was situated at Chak 1 C Badi, District Sri Ganganagar, for sale of which, an agreement was entered into between them for a sum of Rs.36,000/ -; the consideration was paid on the same day; possession of the land was handed over and it was agreed that as and when the loan, which was obtained on the land would be repaid, a notice in this regard, would be given to the plaintiff and whereafter the sale deed would be executed; it was claimed that despite the same no notice was received and, therefore, the plaintiff got issued a notice on 12.12.1996, to which, a false reply was given denying the existence of the agreement and, therefore, the suit was filed seeking specific performance. During pendency of the suit, defendant No.1 Jagtar Sing died and his legal representatives were taken on record; however, during pendency of the suit, the land was transferred by Jagtar Singh in favour of his another son Surjeet Singh, who was impleaded as defendant No.2 and a relief for setting aside of the sale was sought.
(2.) A written statement was filed by Jagtar Singh denying the existence of the agreement to sale and it was claimed that the thumb impressions were got executed by misrepresentation, objections about registration etc. were also raised; after death of Jagtar Singh, written statement was filed by few of the legal representatives admitting the claim of the plaintiff; respondent No.2 filed his written statement and denied the averments made in the plaint. The trial court framed eight issues; on behalf of the plaintiff four witnesses were examined and on behalf of the defendants, defendant No.2 Surjeet Singh was examined.
(3.) AFTER hearing the parties, the trial court came to the conclusion that the agreement was admissible in evidence; the agreement was executed by Jagtar Singh in plaintiff's favour; the possession was handed over; the plaintiff was ready and willing to perform his part of the contract; he was entitled for a decree for specific performance; suit was within limitation; the suit was filed on sufficient court fees; the sale executed in favour of defendant No.2 was liable to be declared null and void and was liable to be cancelled; ultimately, the suit filed by the plaintiff for specific performance was decreed and the sale in favour of defendant No.2 was declared null and void. Feeling aggrieved, the appellant filed first appeal. The first appellate court after hearing the parties upheld the findings recorded by the courts below and dismissed the appeal. An application filed under Order XLI, Rule 27 CPC by the appellant was also rejected by the appellate court. It was submitted by learned counsel for the appellant that both the courts below were not justified in decreeing the suit filed by the plaintiff; it was submitted that the plea regarding readiness and willingness to perform the plaintiff's part of the contract and the limitation has apparently been wrongly decided by the courts below; it was submitted that the plea raised by the plaintiff that as the information about repayment of the loan was not indicated by the defendant Jagtar Singh, on his reply to the notice given by the plaintiff, the cause of action arose is wholly baseless, inasmuch as, in fact no loan was outstanding against the said land and, therefore, the entire plea raised is baseless.;