Case Note & Summary
The case involves two second appeals arising from cross-suits between a son (appellant) and his father and sister. The appellant filed a suit for specific performance of an alleged sale agreement dated 21.07.2005 for a property owned by his father, claiming payment of Rs.20,000 as advance out of Rs.25,000 total consideration. The father and sister filed a suit for injunction against the appellant. The trial court decreed specific performance and dismissed the injunction suit. The first appellate court reversed, dismissing specific performance and decreeing injunction. The appellant appealed under Section 100 CPC. The High Court held that the first appellate court had correctly re-appreciated the evidence and found that the appellant failed to prove the agreement and payment. The court noted that the appellant's witnesses were interested and the father's witnesses were credible. The court also found that the appellant failed to prove possession, while the father and sister proved their possession. Consequently, the High Court dismissed both second appeals, confirming the first appellate court's judgment.
Headnote
A) Specific Performance - Burden of Proof - Agreement of Sale - The plaintiff must prove the execution of the agreement and payment of advance by preponderance of probabilities. In the absence of credible evidence, the suit for specific performance cannot be decreed. (Paras 4-10) B) Injunction - Possession - Suit for Injunction - The plaintiff in a suit for injunction must prove possession. When the defendant fails to prove title or possession, the plaintiff is entitled to injunction. (Paras 11-12)
Issue of Consideration
Whether the first appellate court was justified in reversing the trial court's decree for specific performance and granting injunction based on re-appreciation of evidence.
Final Decision
Both second appeals dismissed; judgment of first appellate court confirmed.
Law Points
- Specific performance
- burden of proof
- agreement of sale
- injunction
- preponderance of probabilities
- Section 100 CPC
