Point of Law : Agreement of Sale - On the basis of such admission, though the Court denied the specific performance, has granted relief of recovery of such amount from the defendant.

JUDGMENT :

M.LAXMAN, J.

APPEAL SUIT Nos.2361 & 2429 OF 2001

1. Since both the appeals arise out of same judgment, they are being disposed of by this common judgment.

2. Both these appeals assail the judgment and decree dated 18.07.2001 in O.S.No.6 of 1993 on the file of the Senior Civil Judge at Khammam, whereunder and whereby the suit filed by the plaintiff, who is the appellant in A.S.No.2429 of 2001, was partly decreed rejecting specific performance and directed the defendant, who is the appellant in A.S.No.2361 of 2001, to refund a sum of Rs.1,60,000/- received by him as part sale consideration with interest 18% per annum.

3. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in the said suit.

4. The case of the plaintiff is that the defendant is the absolute owner of dry land admeasuring Ac.1-00 gunta, forming part of Sy.Nos.92, 93 and 96, situated at Velugumatla Village, Khammam Urban Mandal, Khammam District (hereinafter, referred to as ‘suit schedule property’). The defendant agreed to sell the suit schedule property to the plaintiff through the agreement of sale dated 30.04.1992 (Ex.A-2). The total sale consideration was Rs.2,00,000/-. The plaintiff had paid Rs.10,000/- on the date of agreement towards advance and subsequently he has paid Rs.90,000/- on 14.05.1992, Rs.15,000/- on 16.09.1992 and Rs.45,000/- on 18.09.1992. Thus, the plaintiff has paid total sum of Rs.1,60,000/- and the defendant has also handed over the original sale deed of the suit schedule property dated 01.05.1987.

5. It is the further case of the plaintiff that he was always ready and willing to perform his part of contract i.e., payment of balance sale consideration to get the registered sale deed executed in his favour. The plaintiff had been demanding the defendant to come forward to execute a registered sale deed by measuring the suit schedule property to ascertain the actual extent of land within the specific boundaries given in the suit schedule, but the defendant had been postponing the matter on one or other pretext. Therefore, the plaintiff has issued a legal notice and the defendant, despite receipt of the notice, did not give any reply. Therefore, the plaintiff filed the present suit.

6. The defendant filed his written statement denying the execution of agreement of sale and receipt of any sale consideration. He has also stated that the plaintiff was not ready and willing to perform his part of obligation. He has also denied the demand of the plaintiff to measure the land and execute the sale deed.

7. The defendant claimed that the suit schedule property is his ancestral property. The plaintiff was running a chit fund company in the name of style ‘Sarasa Chit Fund Private Limited’ and the defendant took membership in the chit fund company of the plaintiff and has subscribed a chit worth of Rs.50,000/-. The defendant has received Rs.45,000/- on completion of the said chit. The daughter of the defendant was also a member of chit run by the plaintiff, and on demand, the plaintiff paid Rs.1,500/- towards chit. As such, the said payments are nothing to do with the agreement of sale. The defendant further stated that the agreement of sale was not attested and prayed to dismiss the suit.

8. The trial Court, on the basis of the above pleadings, has framed the following issues:

“1. Whether the plaintiff paid Rs.90,000/- on 14-5-92, Rs.15,000/- on 16-9-1992 and Rs.45,000/- on 18-9-92 to the defendant towards sale consideration for the suit agreement of sale dated 30.04.1992?

2. Whether the plaintiff was always ready and willing to perform his part of the contract, but the defendant was at fault?

3. Whether the plaintiff is entitled to the relief of specific performance?

4. To what relief?”

9. The plaintiff, to support his case, examined P.Ws.1 to 3 and relied upon Exs.A-1 to A-8, Ex.C-1 and Exs.X-1 to X-4. The defendant, to support his case, examined D.W.1, but did not file any documentary evidence.

10. Though, initially the