The appellate court cannot reverse a trial court's decision without credible evidence proving an alternate claim, which was not presented by the defendants.

JUDGMENT :

C. M. JOSHI, J.

1. Heard learned counsel appearing for the appellants and respondents.

2. It is the case of the appellant/plaintiff that he had entered into two agreements of sale with defendant on 27.05.2000 and 19.08.2002 and had paid earnest money of Rs.64,000/- and Rs.1,36,000/- respectively. As per the agreement, three years time was fixed for execution of the sale deeds. Though the plaintiff was always ready and willing to perform his part of the contract, the defendant did not come forward to execute the sale deed and hence, the plaintiff issued a legal notice to the respondent for which the defendant gave an evasive answer. Therefore, the plaintiff was constrained to file this suit for specific performance.

3. The defendant appeared through his counsel and filed a written statement contending that plaintiff is a money lender and he has created all these false agreements of sale when the defendant was in intoxication. He contended that the allegations made in the plaint are totally false and he also denied the receipt of the sum of Rs.1,36,000/- and Rs.64,000/-. The defendant denied that there was any agreement as contended by the appellant and he never had agreed to sell the suit schedule properties to the plaintiff. It was contended that the defendant never executed any agreement of sale in favour of the plaintiff and the agreements relied by the plaintiff are concocted and bogus. He contends that there being two separate agreements, they could not be part of the single suit and Order II Rule 3 of CPC is prohibiting such joinder of the cause of action. Therefore, it is contended that the suit filed by the plaintiff is liable to be dismissed.

4. On the basis of the above pleadings, the Trial Court had framed the following issues:

“ISSUES

1) Whether the plaintiff proves that the defendant by agreeing to sell his joint half share in the suit land along with the right in the Well water, Pumpset, Pipeline and accessories on 27-5-2002 for Rs.1,70,000/- has executed a Registered Sale Agreement by receiving an earnest money of Rs.64,000/-?

2) Whether the plaintiff proves that on 19-8-2002 the defendant by agreeing to sell the remaining half portion in the suit land and the right in the Well. Well water, Pumpset, Pipeline and accessories for Rs.1,70,000/- has executed a Registered Sale Agreement by receiving an earnest money of Rs.1,36,000/-?

3) Whether the plaintiff proves that he is ever ready and willing to perform his part of contract in pursuance of the recitals of the two sale agreements?

4) Whether the plaintiff is entitled to the relief of specific performance of the suit sale agreements?

5) Whether the plaintiff in the alternative is entitled to the refund of the earnest money amount of Rs.64,000/- and Rs.1,36,000/-under the two sale agreements along with interest?

6) Whether the plaintiff is entitled to the reliefs, which he has claimed.

7) What order or decree?”

5. When the matter was slated for trial, the plaintiff was examined as PW1 and Exs.P1 to P15 were marked. One witness was examined on his behalf as PW2. The defendant though had contested the suit by filing the written statement, did not cross-examine the PW1 or PW2. Neither he adduced any evidence rebutting the claim of the plaintiff in any way.

6. During pendency of the said suit, the defendant No.2, who is the son of the defendant No.1 was impleaded by order dated 17.01.2008. On his appearance, the defendant No.2 also did not file any additional written statement.

7. After hearing the learned counsel appearing for the appellant, the Trial Court answered issue Nos. 1 to 4 and 6 in the ‘affirmative’ and issue No.5 was held ‘d