JUDGMENT AND ORDER (CAV)

This second appeal has been preferred by the defendant in Title Suit No. 369/1996 of the Court of learned Civil Judge (Jr. Divn.) No.1, Guwahati. Suit of the plaintiff for Specific Performance of Contract was decreed by the learned Trial Court on 07.09.2002 and an appeal preferred there-against by the defendant in Title Appeal No. 52/2002 of the Court of learned Civil Judge (Sr. Divn.) No. 3 at Guwahati was dismissed on 03.02.2004. Challenging the aforesaid two judgments of the learned Courts below, the defendant has approached this Court by filing this second appeal.

2. The sole respondent, as plaintiff, instituted T.S. No. 369/1996 in the court of learned Civil Judge (Jr. Divn.) No.1, Guwahati alleging that defendant being absolute owner in possession of a plot of land measuring 1 Katha 10 Lechas covered by Dag No. 440 of K.P. Patta No. 278 of village Japorigog under Mouza Beltola, Guwahati entered into an agreement with the plaintiff on 13.05.1993 agreeing to sell the aforesaid plot of land to the plaintiff at a consideration of Rs. 15,000/- in all. On the date of agreement plaintiff paid Rs. 5,000/- towards advance and it was agreed to by the parties in the written agreement that the balance amount would be paid at the time of execution and registration of the sale deed. It is pleaded by the plaintiff that when he approached the defendant with Rs. 10,000/- and requested him to execute the deed with respect to the land described in Schedule B to the plaint, the defendant ‘delayed the matter with some baseless plea’. Compelled, the plaintiff issued registered notice through lawyer on the defendant on 17.02.1994 asking him to accept the balance sum and to execute a registered sale deed within 15 days of receipt of the notice. But the defendant went on delaying the matter. Under such circumstances, the plaintiff filed suit for Specific Performance of Contract against the defendant. Plaintiff prayed that appropriate decree be passed directing the defendant to accept the balance sum of Rs. 10,000/- and thereupon to execute and register a valid sale deed with respect to Schedule B land within fixed period and on his failure to do so, plaintiff be permitted to get the deed executed through court in accordance with law.

3. The defendant appeared and submitted written statement denying execution of the agreement as well as receipt of money as advance for sale of the land described in Schedule B to the plaint. According to the defendant, plaintiff is the son of his own maternal uncle and asked for his signature on blank stamp paper and two cartridge papers to be used in regard to their landed property at village and subsequently converted the same papers into agreement for sale by perpetrating fraud on the defendant. The defendant further stated that he had made payment of Rs.10,000/- to the plaintiff on 24.05.1993 and obtained receipt. It is the further case of the defendant that land described in Schedule A to the plaint of which Schedule B is a part, is the property of the defendant’s family and there is no possibility of subdivision of the same. The case of the defendant was that there was no talk of sale of any land at all not to speak of the land described in Schedule B to the plaint. With these averments, defendant prayed for dismissal of the suit with cost.

4. The learned Trial court framed as many as 4 (four) issues on the basis of the rival contentions of the parties and the same are quoted below:

i) Whether the suit is barred by limitation?

ii) Whether the Deed of agreement dated 13.05.1993 is a fraudulent one?

iii) Whether the plaintiff paid Rs. 5,000/- as advance in pursuance of the Deed of Agreement for sale and whether the plaintiff is entitled to a decree for execution of the sale deed upon payment of the balance consideration?

iv) To what relief, if any, the parties may be entitled?

Both the parties examined 4 (four) witnesses each and adduced documents to prove their respective cases.

5. Learned Tr

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