AND

DECREE

DT.20.01.2007

PASSED

IN

OS.NO.76/2000 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)

SAUNDATTI,

DECREEING

THE

SUIT

FOR

SPECIFIC

PERFORMANCE.

THIS APPEAL COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

Heard the learned counsel appearing for the appellants

and also the learned counsel appearing for the respondents.

2.

For the purpose of convenience, parties will be

referred to henceforth according to their ranks before the trial

Court.

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3.

The factual matrix of the case of the plaintiff before

the trial Court is that the defendant entered into an agreement

of sale with the plaintiff on 15.07.1997 executing registered

sale agreement and received consideration of Rs.90,000/- and

agreed to execute the registered sale deed of the suit land by

receiving balance consideration of Rs.60,000/-. Time was the

essence of the contract and two years date was fixed for

registration of the properties and in spite of having received the

amount, the defendant did not come forward to execute the

sale deed and hence legal notice was issued and in spite of

service of legal notice, the defendant has not given any reply to

the notice and hence left with no other alternative, the plaintiff

filed the suit seeking for specific performance of the contract

against the defendant.

4.

The defendant in pursuance of the suit summons

appeared before the trial Court and filed the written statement

contending that the defendant has received only Rs.40,000/-

from the plaintiff and the document was executed by way of

security for repayment of the hand loan of Rs.40,000/- taken

from the plaintiff but got written a sum of Rs.90,000/- as

amount paid. It is further contended that if really the plaintiff

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were to enter into an agreement to purchase the suit land, he

could have taken possession of the same in part performance

of contract. Hence, the plaintiff is not entitled for the relief of

specific performance.

5.

Based on the pleadings of both the plaintiff and

defendant, the trial Court framed the following issues:

i)

Do the plaintiff prove that, the defendant has

agreed to sell the suit land for

a sale

consideration of Rs.1,50,000/- by executing an

agreement for sale dated 15.7.1997 in his

favour?

ii)

Do the plaintiff further prove that the deft has

received earnest money of Rs, 90,000/- and

agreed to execute registered sale-deed of the

suit land by receiving balance consideration of

Rs. 60,000/-?

iii)

Do the plff further proves that, he is always been

ready and willing perform his part of ;contract as

per the agreement of sale?

iv)

Does the plff further proves that, he is entitled

to claim alternatively refund of earnest money of

Rs.90,000/-as contended?

v)

Do the deft proves that, the plff has paid

Rs.40,000/- by way of hand loan and got written

Rs, 90,000/- as amount paid?

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vi)

Do the deft. further proves that the suit

document was executed by way of security for

the repayment of the hand loan of Rs. 40,000/-

taken from plff as alleged?

vii)

Does the plff is entitled for the relief as sought

for?

viii)

What order or decree?

6.

The plaintiff in order to prove his case, examined

himself as P.W.-1 and his son as P.W.-2 and a witness as P.W.-

3 who is the attesting witness to the sale agreement. The

defendant examined himself as DW-1 by way of filing affidavit

but subsequently has not offered himself for cross-examination

and hence, cross-examination is recorded and thereafter, trial

Court having heard the learned counsel appearing for the

parties decreed the suit against the defendant. While

decreeing the suit, the trial Court has answered issue Nos.1 to

3 as affirmative and has come to the conclusion that defendant

has not proved issue Nos.5 and 6 and answered them as

negative. Hence, the present appeal is filed by the defendant.

7.

Learned counsel for the appellant in his argument

would vehemently contend that sufficient opportunity was not

given to the appellant to tender himself for cross-examination