GOHIL AMARSING GOVINDBHAI Vs. SHAH MANSUKHLAL CHHAGANLAL

JUDGEMENT

(1.) This Appeal under Section 100 of the Code of Civil Procedure is filed by the original defendant who has lost before both the Courts below.

(2.) This appeal was earlier allowed by judgment dated 29.8.2002. The said judgment was challenged by the respondent by filing Civil Appeal No. 5614 of 2006 [SLP(C) No.7514 of 2003] before the Hon ble Supreme Court. The Hon ble Supreme Court set aside the said judgment of this Court and remitted the matter for disposal in accordance with law. This appeal is, therefore, placed before this Court to decide afresh.

(3.) The respondent-plaintiff had filed Civil Suit No.222 of 1973 to recover possession of the suit house from the defendant. The case of the plaintiff in the suit is that he was in need of money and demanded money from the defendant. The defendant agreed to give money and asked the plaintiff to execute agreement to sell (Banakhat) in respect of the suit house in his favour. The plaintiff received Rs.900/- from the defendant and executed agreement to sell in his favour on 29.12.1962. In the agreement to sell, it is provided that on repayment of Rs.900/- by the plaintiff, defendant shall deliver back possession of the suit house to the plaintiff. It is further case of the plaintiff that the suit house remained in possession of the defendant in lieu of interest on an amount of Rs.900/- and when the plaintiff was ready to repay amount of Rs.900/-, he served a notice asking the defendant to deliver possession of the suit house by accepting Rs.900/- from him in terms of the agreement between the parties. Defendant, however, gave evasive reply and did not give possession to the plaintiff. The plaintiff, therefore, filed present suit seeking recovery of possession of the suit house from the defendant by directing the defendant to accept Rs.900/- from the plaintiff.