Hon’ble Siddharth, J.—Heard Shri Sumit Suri holding brief of Shri Nipun Singh, learned counsel for the appellant and Shri Santosh Kumar Srivastava, learned counsel for the respondent.

2. This is defendants’ Second Appeal against the Judgment and Decree dated 1.11.2006, passed by Sri C.K. Kulshrestha, Additional District Judge, Court No. 7, Muzaffarnagar in Civil Appeal No. 05/2006 and Judgment and Decree dated 15.12.2005, passed by Civil Judge (Senior Division), Kairana, Muzaffarnagar in Original Suit No. 123/1995, Sri Chand v. Satyabir Singh, decreeing the suit of the plaintiff for damages alongwith interest @ 6% per annum.

3. The plaintiff instituted an Original Suit No. 123 of 1995, praying for a decree of damages of Rs.24,327/- alongwith interest from 23.9.1985 to 13.11.1995, amounting to Rs.59,195.64 @ 2% interest per month and 2% interest per month on the amount of Rs.24,327/- from 14.11.1995 till the date of recovery from the defendant. The plaintiff’s case is that the defendant claiming himself to be the owner of the property given at the foot of the plaint, executed a sale-deed in his favour for a sale consideration of Rs.22,000/- on 23.9.1985; that it was agreed that possession of the property shall be given later; that during this period one Tilak Ram instituted an Original Suit No. 252/1985 in the Court of Munsif Carana, claiming himself to be the owner of the suit property; that in the aforesaid suit defendant gave his statement and admitted Tilak Ram to be the owner of the property on the basis of family settlement for last 10 years and the suit was decreed in favour of Tilak Ram on 6.10.1993; that therefore defendant was not the owner of the property on the date of sale-deed and he has committed fraud against the plaintiff and hence the suit.

4. Defendant filed his written statement, stating that he never executed any sale-deed dated 23.9.1985 in favour of plaintiff and the same is forged and fabricated document; that defendant was neither the owner nor in possession over the suit property and therefore there is no question of selling the same to the plaintiff; that since possession of property is required to be delivered to the purchaser on the date of sale-deed and it was not delivered therefore, it is clear that the sale-deed is the forged document; that plaintiff was required to enquire prior to sale-deed who is the real owner of the property and in possession; that Tilak Ram became owner of the property in 1982 on the basis of family settlement and therefore there was no question of sale by the defendant; that the suit is not maintainable; from the decree of the Original Suit No. 252 of 1985, title of Tilak Ram is clear.

5. On the basis of the pleadings of the parties, the trial Court framed the following issues,

(I). Whether the plaintiff is entitled to get Rs.24,327/- from the defendant as stated in the plaint?

(II). Whether the plaintiff is entitled to interest @ 2% per month from the defendant w.e.f., 24.9.1985?

(III). Whether defendant has executed the sale-deed dated 23.9.1985 in favour of plaintiff and has received Rs.22,000/- as sale consideration?

(IV). Whether the suit is barred by time?

(V). Whether there is no property in existence which has been described in the sale-deed dated 23.9.1985? If yes, then its effect?

(VI). Whether the plaintiff is entitled to any relief?

6. Trial Court decided issue No. 3 holding that defendant executed sale-deed dated 23.9.1985 in favour of plaintiff after taking Rs.22,000/- from him. Issue No. 1 was decided holding that plaintiff is entitled to get back Rs.22,000/- and expenses of Rs.2,327/-, total amount of Rs.24,327/- from the defendant. Issue No. 2 was decided holding that plaintiff is entitled to interest @ 6% per annum on the amount of Rs. 24,327/- from defendant. Issue No. 4 was decided holding that suit is not barred by time. Issue No. 5 was decided holding that property in dispute is identifiable and in existence and finally issue No. 6 was decide