BANARSI Vs. RAM PHAL

JUDGEMENT

(1.) Leave granted in both the SLPs.

(2.) A suit for specific performance of an agreement to sell entered into between the parties on 3-11-1988 and later on novated by an agreement dated 15-7-1991, was filed by the respondent herein. According to the latter agreement, the consideration for sale was appointed at Rs. 2,90,000/- out of which an amount of Rs. 2,40,000/- was acknowledged by the vendor to have been received, leaving a balance of Rs. 50,000/- to be received at the time of execution and registration of the sale deed. The appellants had also filed their own suit seeking cancellation of the agreement dated 30-11-1988 on the ground that the nature of transaction between the parties was one of loan; that the amount of loan taken by the appellants was only Rupees 60,000/- but the respondent had added advance interest and capitalised the same; and that the amount of loan with interest was returned and yet the respondent had failed to deliver back as fully discharged the agreements dated 30-11-1988 and 15-7-1991. The two suits were consolidated and tried together by the learned Civil Judge. Vide the judgment and decree dated 20-5-1994, disposing of both the suits, the Trial Court held that looking at the real nature of the transaction entered into between the parties and the evidence adduced to show the actual amount which passed from the respondent to the appellants it was just and proper that the appellants returned the amount of Rs. 2,40,000/- with interest calculated at the rate of 1% per month with effect from 3-11-1988 on Rs. 1,80,000/- and with effect from 15-7-1991 on Rs. 60,000/-. During the course of its judgment the Trial Court recorded a specific finding that the appellants were cultivating the land; that land in dispute was very necessary for the maintenance of their family; and that if execution of sale deed was directed they would suffer too much hardship. The operative part of the judgment, incorporated in the decree, reads as under :-

(3.) The appellants herein filed two appeals in the High Court. By an interim order dated 13-7-94 passed in one of the appeals, the High Court directed execution of decree under appeal to remain stayed subject to the appellants depositing an amount of Rs. 80,000/- on or before 31st March, 1995. On 24-3-95, the appellants deposited the amount of Rs. 80,000/- in the High Court. During the pendency of the first appeals, the pecuniary jurisdiction of the District Courts was enhanced consequent whereupon the first appeals came to be transferred from the High Court to the District Court. Both the appeals came to be heard and decided by the learned Additional District Judge vide his judgment dated 21-9-99. Both the appeals were dismissed. The respondent did not prefer any appeal of his own nor filed any cross-objection. While holding the appeals preferred by the appellants liable to be dismissed, the first appellate Court framed the operative part of the judgment as under :-