JUDGMENT :

ARAVIND KUMAR, J.

1. This first appeal is directed against the judgment and decree passed in Special Civil Suit No.167 of 1984 dated 23.10.2000 whereunder suit filed for specific performance of Agreement of Sale dated 27.12.1974 came to be dismissed.

BRIEF BACKGROUND OF THE CASE:

2. The parties are referred to as per their rank in the trial court.

3. Plaintiff claiming to be a cooperative society registered under the Gujarat Cooperative Housing Societies Act sought for a decree of specific performance being passed in its favour contending inter alia that property bearing Survey Nos.37 and 39 situated at village Thaltej, Taluka Daskroi, District Ahmedabad, admeasuring 2-Acres and 29-Gunthas and 4-Acres and 38- Gunthas respectively belonged to first defendant which is a trust registered under the Bombay Public Trusts Act (for short, ‘BPT Act’) and defendant Nos.2 to 8 are its trustees. It was further contended that defendants had executed an Agreement for Sale dated 18.08.1966 in favour of Pramukhlal Jivanlal Parikh and Ambalal Ishvarlal Prajapati. Said Pramukhlal Jivanlal Parikh as well as the Trust executed an Agreement of Sale dated 21.09.1970 in favour of Gangaram Bhaskarrao Pavde. Said Gangaram Bhaskarrao Pavde assigned his rights in favour of a partnership firm M/s.Jalpa Traders through its partner Mukundbhai Chimanlal Shah. One of the trustees Mr.Kunjbiharilal Madhavlal Bhagwat is said to have executed an Agreement to Sell dated 08.05.1972 in favour of the partnership firm Jalpa Traders through its partner Mukundbhai Chimanlal Shah and he had also previously executed an Agreement dated 03.04.1972. As such, Jalpa Traders claimed all rights under the Agreement to Sell acquired by it. The said rights of Agreement of Sale which was acquired by Jalpa Traders came to be assigned by the said firm through its partners in favour of M/s.Chhaganlal and Company vide Agreement to Sell dated 23.11.1973, who entered into an Agreement of Sale in favour of the plaintiff society to sell the land under the Agreement of Sale dated 27.12.1974, under which agreement plaintiff society is said to have paid a sum of Rs.15,000/- to M/s.Chhaganlal and Company. Plaintiff also claimed that a sum of Rs.25,000/- is paid on 20.05.1975 and Rs.5,000/- on 15.12.1978 and in all Rs.45,000/- was paid to said Chhaganlal & Company. Plaintiff claimed that all trustees of the defendant trust have agreed to continue the Agreement of Sale dated 27.12.1974 executed by M/s.Chhaganlal and Company and at the first instance, the agreed price was Rs.3.25 per sq.meter and it was agreed to be revised upwards by Rs.2 per sq.meter totaling to Rs.5.25 per sq.meter. It is also contended that while assigning all rights over the said land in favour of the plaintiff society by the defendants, all the defendants have executed their writings over the Agreement to Sell dated 27.12.1974 and on 18.04.1976 vacant and peaceful possession of the land (hereinafter referred to as ‘suit schedule property’) agreed to be sold in favour of plaintiff society was handed over to the plaintiff.

4. It is further contended by the plaintiff that defendant trust had received a sum of Rs.20,001/- towards consideration by Cheque dated 21.10.1982 which has been duly accepted that it was in lieu of Cheque dated 11.08.1982 owing to certain mistake in the said cheque. It is also contended that further sum of Rs.5,500/- was paid towards sale consideration on 30.12.1982 and a sum of Rs.5,000/- paid on 04.06.1983 by cheque drawn on Ahmedabad District Cooperative Bank. Thus, plaintiff society claimed that in all it had paid Rs.30,501/- to the defendant trust.

5. Plaintiff also claimed that one Shri Babaji Bapuji had been as appointed on 01.10.1976 as Watchman for the suit schedule property after obtaining possession and a sum of Rs.4,800/- was paid to him by Chhaganlal and Company and same had been refu