JUDGMENT
B.K. Rathi, J.
1. The appellant filed suit for specific performance of contract of sale against the respondent. It was pleaded that the respondent on 13.6.1984 agreed to sell the land in dispute in favour of the appellant for Rs. 20,000 out of which Rs. 3,000 were paid in advance and Rs. 15,000 were paid at the time of the registration of the agreement and Rs. 2.000 remained as balance. The sale deed was to be executed within two years. The respondent alleged that there is some dispute regarding the property with Ibney Hasan and, therefore, the sale deed could not be “executed. Later on, the respondent demanded more price and another agreement to sell was entered between the parties regarding the same property which was registered on 13.6.1986, according to which, the consideration agreed was Rs. 25,000 ; Rs. 18,000 were mentioned in the agreement to have been paid in advance and Rs. 2,000 were paid at the time of the registration of the agreement. Rs. 5,000 was to be paid at the time of the sale deed.
2. Necessary allegations were made regarding service of notice ; that the appellant was ready and willing to perform his part of the contract but the respondent has not executed the sale deed, hence the suit was filed.
3. The respondent contested the suit and alleged that he took loan of Rs. 9,000 by mortgaging his land ; that in place of mortgage an agreement to sell was got executed ; that the respondent never agreed to sell his land nor executed any agreement for sale ; that the loan taken by the appellant has been repaid except only Rs. 15,000 are due on him which he could not pay ; that, therefore, a fresh agreement for Rs. 2,000 was got executed which included Rs. 1.500 as balance amount and Rs. 500 towards interest ; that Rs. 2.000 were shown before the Sub-Registrar were taken back by the appellant ; that the appellant is carrying on the business of money lending and is in the habit of getting the agreement to sale executed in his favour in consideration of the loan ; that there was no dispute regarding the land with Ibney Hasan.
4. The trial court framed necessary issues and recorded the finding on all the issues in favour of the appellant and decreed the suit. Against that decree, the respondent preferred Civil Appeal No. 94 of 1995 which has been allowed by the impugned judgment, dated 6.11.1971. Therefore, the present appeal has been preferred by the plaintiff. At the time of admission of the appeal, no substantial question of law was framed. Only it is mentioned that some mixed questions of law and facts are involved and, therefore, the appeal is admitted.
5. I have heard Sri Deo Raj, learned counsel for the appellant and has perused the record. Sri V, M. Zaidi, counsel for the respondent has not appeared and could not be heard.
6. I have perused the record and am of the view that the Judgment of the appellate court is wholly perverse based on surmises and extraneous considerations and is not based on evidence. There are two registered agreements executed by the respondent in favour of the appellant. Both the documents are registered. There is an admission before the Sub-registrar regarding the advance payment and the money was also paid before the Sub-registrar at the time of each agreement. The agreement has not only been signed by the respondent but also by his son who was examined as D.W. 3. Atiq Hussain, son of the respondent is a literate person and he has signed both the agreements. The father and son both have signed the agreement. There does not appear any question of fraud. There is also no reliable evidence in support of the allegation of respondent that he has taken loan and has repaid the same.
7. There is simple allegation that the appellant is money lender and is in the habit of getting the deed executed for double of the amount. No example of the same has been given. It has not been disclosed as to whom the appellant advanced the loan.
8. Before the filing of the suit, a notice was served by the appellant on the respondent ; that notice was not replied by the respondent. There is no reason as to why he immediately did not send reply that no agreement was executed by him. The entire defence appears to have taken by the respondent on legal advice.
9. According to first agreement, Rs. 3,000 were paid before the execution of the agreement and Rs. 15,000 were paid before the Sub-Registrar and in the second agreement, it was mentioned that Rs. 18,000 has already been paid in advance. The execution of the agreement of sale and payment of Rs. 18,000 in advance and Rs. 2,000 before the Sub-Registrar has fully been proved in this case.
10. The Judgment of the first appellate court is not based on evidence and is perverse. No reason has been mentioned by him for disagreeing with the findings of the trial court. Such a judgment is fit to be set aside in the second appeal as it involves substantial question of law.
11. Accordingly, this appeal is fit to be allowed.
12. The appeal is allowed with costs. The judgment of the first appellate court in Appeal No. 94 of 1995 dated 6.11.1997 is quashed and that of the trial court dated 14.9.1994 passed in Original Suit No. 412 of 1988 is restored.