SHARMA, J. - (1.) THIS appeal under Section 96 C. P. C. arises out of the judgment and decree dated 22. 9. 1984 passed by the learned Additional District Judge Baran, whereby the learned Judge has dismissed the plaintiffs suit for specific performance and permanent injunction.
(2.) THE plaintiffs filed a suit for specific performance and permanent injunction against the defendants in relation to certain lands bearing Khasra Nos. 113, 116, 117, 120, 124, 128, 132, 133 and 138, the details of which have been mentioned in para Nos. 3 and 4 of the suit. As per the plaintiffs, the defendants agreed to all the aforesaid land for a consideration of Rs. 18,000/-, against which the plaintiffs paid a sum of Rs. 10,000/- and the defendants executed an agreement to sell on 31. 8. 1979. THE possession of some of khasras was delivered on the same day and possession of rest of khasras was promised to be handed over on 'akhateej'. According to the plaintiffs they paid Rs. 2,500/- on different dates and the defendant No. 2 issued receipt in token thereof. THE plaintiffs averred that they were ready and willing to pay rest of the sale price. However, the defendants went on avoiding receipt of remaining amount on one pretext of the other despite repeated requests by the plaintiffs to accept the remaining amount and to get done registry of the sale in their favour. The defendants served upon the plaintiffs a notice on 4. 4. 1981 alleging that the disputed land was mortgaged with the plaintiffs for Rs. 10,000/- and Rs. 8,000/- were outstanding towards mortgage amount. It was stated that possession of the land be returned. According to the plaintiffs the notice of the defendants was baseless and they, through their advocate, got served a notice on defendants no. 1 and 2 stating that they are ready and willing to pay rest of the amount. Despite completion of the notice period, the defendants failed to get the sale deed registered in favour of the plaintiffs and therefore, the plaintiffs are entitled for a decree of specific performance. The defendants filed written statement and denied the averments of the suit. The trial Court, on the basis of pleadings of the parties, framed issues and at the conclusion of trial, dismissed the plaintiffs' suit. I have heard learned counsel for the parties and gone through the impugned judgment and the record of the case. A perusal of the impugned judgment shows that trial Court has divided issue No. 1 in three parts viz. , (i) whether the defendants agreed to sale the land in dispute for Rs. 18,000/-, (ii) whether in pursuance of the above transaction, the defendants executed agreement Ex. 4, and (iii) whether at the time of execution of agreement to sale, Ex. 4, Rs. 10,000/- in cash were paid to the defendants. On consideration of evidence, the trial Court decided first two parts in favour of the plaintiffs and third part, against the plaintiffs. Issue No. 2 was decided in favour of the plaintiffs, while issue no. 3 was partially decided in favour of the plaintiffs, holding that the plaintiffs were in possession of the land bearing Khasra Nos. 124, 128, 132, 133 and 138 prior to 31. 8. 1979. Issue No. 4 was decided in favour of the plaintiffs, while issue No. 5 was decided against them. Issue No. 5 was decided against the plaintiffs, holding that the plaintiffs could not prove the payment of Rs. 2,500/- to the defendants. Issue No. 6 was decided in favour of plaintiff, holding that he was ready and willing to pay to the defendants a sum of Rs. 5,500/- i. e. The balance amount of sale consideration. However, the learned trial court dismissed the plaintiffs' suit on the ground that the plaintiffs could not prove the payment of Rs. 10,000/- and Rs. 2,500/ -. According to the trial Court, the plaintiffs could prove the payment of Rs. 2,000/- only as against Rs. 10,000/- and Rs. 297 as against Rs. 2,500/ -. Thus the balance amount as against sale consideration, which remained due to be paid was 8,000/- + 2,203/- + 500/-, totalling to Rs. 15,703/- (Rs. 15,503/- have wrongly been mentioned in the judgment ). The trial Court concluded that the plaintiffs neither pleaded nor could prove that he was ready and willing to pay Rs. 15,703/- to the defendants as the balance amount of sale consideration of Rs. 18,000/ -.
(3.) IN view of above, the sole controversy centres round the disputed questions of fact, namely, (i) whether the amount of Rs. 10,000/- was paid at the time of execution of agreement Ex. 4 and (ii) whether the amount of Rs. 2,500/- was paid by the plaintiffs to the defendants on different dates? In para 5 of the plaint, the plaintiffs have made a specific averment that the defendants executed an agreement to sell on 31. 8. 1979 after they received a sum of Rs. 10,000/- in cash as against the sale consideration. The defendants in para 5 of their written statement have categorically stated that neither the plaintiffs paid Rs. 10,000/- nor they received any sum. The plaintiffs have tried to prove this averment by adducing evidence. PW-1 Ram Karan plaintiff himself has stated in his examination in chief that out of the sale consideration of Rs. 18,000/-, a sum of Rs. 10,000/- was paid in cash. In cross- examination, the witness has stated in specific terms that Rs. 10,000/- were paid in cash at the time of execution of agreement to sell, Ex. 4. At the end of cross-examination the witness stated that Rs. 10,000/- were paid to Raghunath and Benya and thereafter they executed agreement to sell Ex. 4. PW2 Ajeem Khan, scribe of document Ex. 4 in his examination in chief has stated that Raghunath and Benya agreed to sell the land for a consideration of Rs. 18,000/-, out of which Rs. 10,000/- were paid in cash and balance amount of Rs. 8,000/- was to be paid at the time of registration of the sale deed. However, in cross-examination witness Ajeem Khan has specifically deposed that Rs. 2,000/- were paid in his presence at the time of execution of agreement to sell Ex. 4. He further stated that Raghunath and Benya defendants accepted to have received Rs. 8,000/- prior to it. It is thus not proved from the statement of PW-2 Ajeem Khan that Rs. 10,000/- were paid to the defendants at the time of execution of document Ex. 4. PW4 Kishore is a witness to agreement to sell Ex. 4. He has stated that at the time of execution of documents, both the defendants agreed to receive Rs. 10,000/ -. In cross-examination the witness stated that there was no cash transaction of Rs. 10,000/- in his presence. Only the taking of money was admitted. Thus, totality of the evidence discussed above leads to draw an inference that an amount of Rs. 10,000/- was not paid by the plaintiffs to the defendants. One witness states that Rs. 2,000/- were paid in his presence, while another witness states that nothing was paid in his presence. The specific case of the plaintiffs was that at the time of execution of document, Ex. 4 they paid to the defendants a sum of Rs. 10,000/- in cash. However, the fact remains that both the witness have not supported this fact. It may further be stated that it is also not the case of the plaintiffs that they paid Rs. 10,000/- in two instalments of Rs. 8,000/- and 2,000/ -. In this view of the matter, I am of the firm view that trial court has rightly concluded that Rs. 2,000/- only were paid at the time of execution of agreement to sell, Ex. 4. ;