JUDGMENT :

This is a defendant’s appeal calling in question the judgment and decree passed in O.S.No.16831/2001 whereunder suit filed by the plaintiffs seeking specific performance by directing the defendant to receive the balance sale consideration and execute the sale deed in their favour in respect of the suit schedule property in all measuring 5027.75 sq. ft. has been decreed.

2. The suit initially was filed for the relief of permanent injunction namely to restrain the defendant from interfering with or obstructing plaintiffs’ lawful possession and enjoyment of the suit schedule property. Subsequently, prayer came to be amended seeking relief of specific performance and to direct the defendant to receive the balance sale consideration amount and to execute the sale deed in respect of suit schedule property in favour of plaintiffs and in the alternate to direct the defendant to refund double the amount paid towards the agreed sale consideration. Defendant appeared and filed his written statement denying the claim of the plaintiff but admitting the execution of Memorandum of Understanding (hereinafter referred to as ‘MOU’ in short), Agreement of Sale, supplemental agreements and endorsement made on supplemental agreement dated 17.10.1996.

3. On the basis of the pleadings of the parties learned trial judge framed the following issues for consideration:

1) Whether the plaintiffs prove that, they are in lawful possession of the suit schedule property?

2) Whether the plaintiffs prove illegal interference by the defendant?

3) Whether the plaintiffs are entitled to relief of injunction?

4) What decree or Order?

ADDITIONAL ISSUES:

1) Whether the plaintiffs prove that, they were always ready and willing to perform their part of the Agreement and that it is the defendant who has fallen back from the promise?

2) Whether the plaintiffs prove that, they are entitled to the possession of the remaining portion of the suit schedule property, as sought for?

3) In the alternative, in the event of holding that, the plaintiffs are not entitled to a decree for Specific Performance then are they entitled for refund of the amount paid within interest at 30% as sought?

4) Whether the plaintiffs are entitled to the relief sought?

4. In order to substantiate their respective claims first plaintiff got himself examined as PW1 and in all produced 19 documents and got them marked as Exs.P-1 to P-19. Son of the defendant got himself examined as D.W1 in the capacity of General Power of Attorney holder of defendant and 4 documents were got marked as Exs.D-1 to D-4. Learned trial Judge on consideration of the pleadings, evaluating both oral and documentary evidence and after considering the rival contentions raised at the bar, decreed the suit by arriving at a conclusion that there was an agreement entered into between the parties with regard to sale of the suit schedule property and this fact has not been denied by the defendant. It is further held that son of the defendant who came to be examined as DW1 was present at the time of negotiations between the plaintiffs and his father and the fact that his father had agreed to sell the suit property in favour of the plaintiffs had also been admitted by him. It is further held that DW1 after having perused Ex.P-1 has admitted that his father had delivered possession of the property described in the Schedule-II of Ex.P-1 to plaintiffs on the said date. Learned trial Judge also held that DW1 has admitted execution of Ex.P-5 between plaintiffs and defendant on 17.10.1996 after measurement of the property and it was endorsed on 15.10.1999 as per Ex.P-5-a by extending six (6) weeks time for execution of sale deed. It has been further noticed by the learned trial Judge that when DW1 was questioned as to whether defendant was ready to execute the sale deed by receiving balance sale consideration amount at the agreed rate of Rs.630