DINESH MEHTA,J. - (1.) The present appeal has been filed by the appellant laying challenge to a judgment and decree dated 28.08.1988 whereby, the suit instituted by her has been dismissed by the Additional District Judge No.1, Jodhpur (hereinafter referred to as the 'Trial Court').
(2.) The facts apropos for the present appeal are that the plaintiff - Chandrakala, now being represented by her Legal Representatives, had filed a suit for specific performance of an agreement to sell dated 01.08.1975, inter alia, averring that the defendant had agreed to sell the suit house to her for a sum of Rs.25,000/- for which, an agreement dated 01.08.1975 came to be executed upon payment of an advance sum of Rs.10,000/-. According to the terms of the said agreement, the plaintiff was required to make payment of the remaining amount by 01.08.1977 and on such payment being made, it was incumbent upon the defendant to execute a sale-deed in her favour. According to the assertion made in the plaint, the plaintiff had made further payment of Rs.10,000/- on 03.08.1975, in acknowledgment whereof, the defendant had issued a receipt of even date. It has also been stated in the plaint that the plaintiff had made payment of remaining amount of Rs.5,000/- on 26.07.1976 and on receipt of the entire sale consideration, the defendant had assured the plaintiff that the registered sale-deed would be executed in some time. Plaintiff's case has been that, while receiving the amount of Rs.5,000/- on 26.07.1976, the defendant had promised to pay a sum of Rs.500/- per month, as rent to the plaintiff till the sale-deed is executed and possession is handed over and issued a receipt to this effect.
(3.) Producing the original agreement to sell dated 01.08.1975 (Exhibit-1), receipt dated 03.08.1975 for a sum of Rs.10,000/- (Exhibit-2) and the second receipt dated 26.07.1976 (Exhibit-3), the plaintiff contended that as the entire sale consideration had been paid, a decree for specific performance be issued in her favour, as the defendant has refused to execute the requisite sale- deed. It was also averred in the plaint that the defendant, who used to live in the subject premises, situated at 1 st 'C' Road, Sardarpura, has started living in Talanpur, Tehsil Merta (District Nagaur) and has even refused to accept the notice sent for calling upon the defendant to execute a sale-deed.;