1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Smt. Bhooteri & Ors. V/s. Jhuntar @ Jhunta Ram & Ors. (S.B. CIVIL FIRST APEAL No.164/2010) S.B. Civil First Appeal under Section 96 of the Civil Procedure Code Date of Order :: May 04, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Rahul Tiwari for the appellant. Aggrieved by the judgment and decree dated 9th March, 2010, the appellant-plaintiffs have challenged the same before this Court. The brief facts of the case are that the plaintiffs had filed a suit for specific performance and permanent injunction in relation to an agreement to sale, dated 28.10.1993, against the defendant, Late Shri Jhuntar. The defendant had died during the pendency of the suit. In the plaint, it has been averred that the defendant has been 2 allotted land in village Seelgaon, Tehsil Mundawar. The defendant had agreed to sale the said land to the father of the plaintiff namely, Shri Phool Singh for consideration of Rs.62,000/-. The defendant has received an amount of Rs.50,000/- as part payment. In agreement to sale, it was settled between the parties that whenever the defendant after paying the dues to the concerned office, and after obtaining of the “Sanad Patta” of the land, he will inform Phool Singh and after receiving the balance amount, he will execute a sale-deed in favour of Phool Singh. In the life time of Phool Singh, he always requested the defendant to perform the contract. After the death of Phool Singh, the plaintiffs have also requested the defendant, but he has not done so. The defendant filed the written statement wherein he denied the averments of the plaint. The learned trial Court framed six issues including the issue of relief. In support of the plaint, the plaintiffs examined six witnesses and also produced documentary evidence. The defendant also produced one witness. After going through the evidence, vide its judgment and decree dated 09.03.2010 the learned Court partly decreed the suit of plaintiff. But it 3 refused to grant the decree for specific performance of the contract. It held that the plaintiff is entitled to get the refund amounting to Rs.50,000/- along with interest @ 10% per annum from 28.10.1993. Hence, this appeal before this Court. Mr. Rahul Tiwari, the learned counsel for the appellant, claims that there was sufficient evidence to prove the fact that the appellants' father, Phool Singh, had constantly asked the defendant to fulfil his undertaking before 1st June of 1994 as given by him in agreement to sale. Despite his oral request, the defendant did not fulfil the undertaking. After the death of Phool Singh, in 2007, the present appellants also requested the defendant to fulfil his undertaking and to hand over the possession of the land after receiving the remaining amount of Rs.12,000/-. According to the learned counsel, this aspect has been overlooked by the learned trial Court. Thus, the learned Trial Court has erred in not passing a decree for specific performance and in passing a decree for repayment of the amount of Rs.50,000/- to the appellant-plaintiffs. 4 Heard the learned counsel and perused the impugned order. Issue No.2 as farmed by the learned trial Court is as under :- "आया वादीगण अपना पाटर् अदा करने को रैडी एंव िविलंग रहे है और अब भी है ?” According to the learned trial Court, the agreement to sale dated 28.10.1993 contains an undertaking given by the defendant which is as under :- "मैं आराजी वाला की कीमत जमा करा कर सनद पट्टा लेकर हकूक खातेदारी ूाप्त कर खरीददार को रिजःटडर् पऽ से सूिचत कर दंगा और बाद सूचना खरीददार ू बकाया रकम 12,000/- रूपये िदनांक 01 जून, 1994 तक अदा कर रिजःशी बैअनामा अपने नाम अपने खचेर् पर पंजीयन करा लेगा । कीमत सरकारी खरीददार को ही अदा करनी है । इस सौदा बेचान से मैं व मेरे वािरसान पाबन्द रहेंगे, कब्जा बहैिसयत खरीददार वक्त बैअनामा कंफमर् िकया जावेगा ।" 5 However, according to the learned trial Court, except for the testimony of P.W. 1, Suresh Chand, there is no other evidence to prove that Phool Singh had done anything to ensure that the defendant does implement the agreement to sale. Although, according to Suresh Chand (P.W.1), an oral request was made, but neither any independent witness has been produced to buttress this claim, nor any documentary proof has been given. Therefore, the learned trial Court validly concluded that while Phool Singh was alive, he did not try to see that the agreement to sale is implemented by the defendant. Interestingly, although Phool Singh had paid a sum of Rs.50,000/- to the defendant, although the possession of the land continued to be with the defendant, Phool Singh maintained a studied silence over the entire matter. The learned trial Court is of the opinion that since neither of the two parties acted upon the agreement to sale dated 28.10.1993, the only solution to the dispute is that the amount taken by the defendant, namely Rs.50,000/- from Phool Singh, should be returned back to the appellants. After considering and discussing the evidence in detail, the learned trial Court has directed that the amount of Rs.50,000/- along with interest @ 10% per annum should 6 be repaid to the appellants. Since the learned trial Court has not only meticulously discussed, but has also given cogent reasoning for its conclusion, this Court does not find any perversity or illegality in the impugned order. Hence, this appeal is devoid of any merit; it is, hereby, dismissed. (R.S.CHAUHAN)J. A.ASopa/-