JUDGMENT :

1. The appellant by filing this Second Appeal impeaches the judgment and decree passed by the learned 2nd Additional District Judge, Puri in R.F.A. No. 36 of 2008 which arises out of the judgment and decree passed in O.S. Nos. 39/115 of 1986/82 as later on clarified undergoing modification by order dated 12.12.2006 passed by learned Addl. Civil Judge, (Sr. Division), Puri in CMA No. 06 of 2004.

The present appellant is the plaintiff in the original suit before the trial court and also the appellant in the aforesaid First Appeal, wherein this respondent is the defendant-respondent.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court.

3. The lis now in hand has a long journey since the year 1982 which has by now been for around three decade and half. The same has to be stated for proper appreciation of the matters involved in this appeal. The run is therefore described herein below:-

(a) The plaintiff had filed the suit i.e. O.S. Nos. 39/115 of 1986/82 against the defendant for specific performance of contract of sale of the suit land with the house standing thereon. The plaintiffs case is that the defendant is the owner of the land and house situated at Puri town. Being in urgent need of money, on 07.9.1979, the defendant had mortgaged the same in favour of the plaintiff taking a sum of Rs. 3,000/- and giving delivery of possession of the same. The plaintiff claims to be in possession of the suit land and house since then. The defendant again wanted to be paid with sum of Rs. 1050/-. So on 03.10.1979, the plaintiff paid sum of Rs. 1050/- to the defendant who granted a receipt. Thereafter, the defendant took further sum of Rs. 1000/- on 02.12.1979; Rs. 2,250/- on 09.12.1979. The defendant had granted receipt towards payment of Rs. 1000/- on 02.12.1979 and on 09.12.1979, he had executed a deed acknowledging to have incurred the loan. Thus in total, the defendant had received a sum of Rs. 7,700/- from the plaintiff. Being asked by the plaintiff for repayment of the loan amount, the defendant expressed his inability. He then finally came out with the proposal to sale the suit land and house to the plaintiff for a consideration of Rs. 10,000/-. So, on 30.08.1981, the defendant executed an agreement in that regard. It is stated that although the defendant had received a sum of Rs. 7,700/- from the plaintiff and executed an agreement for sale of the suit land and house, he thereafter did not come forward to execute the sale-deed in favour of the plaintiff. So, notices were served by the plaintiff upon the defendant. Despite the notice, the defendant having failed to execute the sale-deed, the plaintiff filed the suit for specific performance of contract for sale of the suit land and house standing theeron. It has been the specific case of the plaintiff that he was/is ready and willing to pay the balance agreed consideration of Rs. 2,300/- to the defendant and bear all other expenses for the registration of the sale-deed. However, the defendant avoided to comply the sale transaction as agreed upon.

(b) The defendant while traversing the plaint averments has stated that the husband of the plaintiff is his friend and is addressed as brother. Standing with such relationship, they used to discuss about their financial condition. The defendant being in need of money once wanted to incur loan of Rs. 3,000/- from the plaintiff’s husband and he was so accommodated. As he could not repay the loan, the plaintiff’s-husband had cautioned. He further admits to have executed a deed of mortgage at his cost on 07.09.1979 in favour of the plaintiff. It is stated that since the defendant was residing at his work place outside Puri town, previously the house was under his lock and key. Since the defendant could not repay the loan of Rs. 3,000/-, he had allowed the plaintiff and her husband to stay in the house. The defendant had