The Judgment of the learned II Additional District Judge-cum-Fast Track Court, Srikakulam in A.S.No.39/2004 dated 16-10-2008, reversing the Judgment of the learned II Additional Junior Civil Judge, Srikakulam in O.S.No.226/98 and decreeing the suit for specific performance of agreement of sale in favour of the respondent/plaintiff is questioned in this Second Appeal.

2. For convenience, the parties are referred as they are arrayed in the suit and the courts below are referred as “trial court” and “lower appellate court” respectively.

3. The defendant executed an agreement of sale on 7-6-1993 whereby he has agreed to sell land approximately admeasuring Ac.1-38 cents (hereinafter referred as “suit schedule property”) for a total sale consideration of Rs.97,290/-. The plaintiff allegedly paid an amount of Rs.2005/- as advance sale consideration and the defendant agreed to register the suit schedule property in favour of the plaintiff on or before 6-6-1994 after getting the same surveyed with reference to the Field Measurement Book by a qualified Surveyor. It is the plaintiff’s case that he has paid a further sum of Rs.17,000/- in addition to the initial payment of Rs.2005/- on 23-6-1993 and that as the defendant neither got the land measured as agreed under the agreement of sale nor registered the sale deed, he has got issued a registered legal notice on 30-5-1996. As there was no response from the defendant, the plaintiff filed O.S.No.226/98 for specific performance of the agreement of sale or in the alternative for the relief of refund of part sale consideration of Rs.19,005/- with interest.

4. The defendant contested the suit by filing a written statement wherein he has inter alia averred that he has not executed the agreement of sale nor he has received the sale consideration and that he has sold some of his lands to one person by name Addhavarapu Varaha Narasimham who is closely related to the plaintiff and that in connection with the said transaction, the purchaser has taken the defendant’s signatures on many stamped papers which were misused by the plaintiff with a view to grab his land which is situated adjacent to the land sold to Varaha Narasimham.

5.Based on the respective pleadings, the following issues were framed by the trial court:

(i) Whether the sale agreement dated 7-6-1993 is created and not binding on the defendant?

(ii) Whether the plaintiff is entitled for specific performance of the agreement as prayed for?

(iii) Whether the plaintiff is entitled for alternative relief as prayed for?

(iv)To what relief?

Both parties adduced oral and documentary evidence. The plaintiff examined himself as PW-1 and has also examined PW-2 and PW-3 on his behalf. He has marked Exs.A-1 to A-4 on his side. The defendant examined himself as DW-1 and marked Ex.B-1 on his side. On appreciation of the oral and documentary evidence, the trial court answered Issue No.1 in favour of the plaintiff by holding that the agreement of sale marked as Ex.A-1 was proved by the plaintiff and disbelieving the version of the defendant that Ex.A-1 was brought into existence by the plaintiff. Issue No.2 was however held in favour of the defendant. It has held that even though the suit was filed within the period of limitation, the plaintiff failed to prove that he was ready and willing to complete his part of obligation under the agreement of sale and has also failed to explain the reason for his not approaching the defendant with a demand for execution of a registered sale deed nearly for a period of two years after the expiry of one year period stipulated under the agreement for completion of survey and measurement of the land. On this premise, the trial court declined to grant the decree for specific performance of the agreement of sale. On Issue No.3, the trial court held that the plaintiff is entitled to the alternative relief of refund of the advance sale consideration together with interest at 24% per annum. Accordingly, the tri