Aditya Kumar Trivedi, J. – Against the judgment dated 9.4.2018 and decree dated 16.4.2018 passed by the Sub Judge II, Patna in Title Suit No. 274/2010, whereby and whereunder instead of decreeing the suit for specific performance of contract, the defendants/respondents have been directed to pay the amount which they received as an earnest money without cost has been put under challenge under instant appeal at the instance of the plaintiffs- appellants. In order to properly identify the parties they are being introduced through their original status.

2. The plaintiffs/appellants filed the suit for specific performance of contract under the garb of an agreement dated 19.7.2008 entered amongst defendants/ respondents no. 1 and 2 in one set, the defendants/respondents no. 3 to 6 in another set, with regard to an area 1.59½ acre, respectively lying under Khata No. 166, Khesra No. 562 of village Nathupur, P.S. Parsa Bazar, District Patna. In order to properly appreciate the case of the parties, as set up, be briefly stated as-

It has been pleaded at the end of the plaintiffs that Guru Sahay Gope S/o Ganga Gope purchased survey plot no. 562 corresponding to Khata No. 166, area 3 acres 19 decimals lying at village Nathupur, P.S. Parsa Bazar, District Patna (Schedule I property) by auction sale in Case No. 1304/1913 vide registered deed dated 25.6.1914 and came over the same. In due course of time Guru Sahay died leaving behind two sons, namely, Jatadhari Singh and Laldhari Singh. Jatadhari Singh died leaving behind Ramanand Prasad Singh, sole legal heir, who died leaving behind Sachidanand Singh. Sachidanand Singh died leaving behind Pramod Kumar and Yogendra Prasad Singh, defendants no. 1 and 2 as his legal heir. Laldhari had a son Jaglal Singh and he died leaving behind Braj Bhushan Singh, Krishna Prasad Singh, Surendra Prasad Singh and Narendra Prasad Singh (defendants no. 3 to 6) as his legal heir. In this way, branches of Jatadhari and Laldhari have got half share in the land under dispute.

3. Then it has been averred that the defendants, after coming in need of money flashed news of sale of the land in question and coming about the same, the plaintiffs approached and then, it was finally settled at the rate of Rs.65,000/- per katha and in token thereof, two deed of agreement, one by defendants no. 1 and 2 relating to 1.59½ acre of land and another by defendants no. 3 to 6 relating to similar area after receiving 4 lacs by defendants no. 1 and 2 as well as defendants no. 3 to 6, independently, respectively were executed on 19.7.2008. It has further been pleaded that some time after execution of the agreement, the defendants insisted upon the demand and in the aforesaid background defendants no. 1 and 2 got Rs.10,50,000/- (totalling Rs.14,50,000/-) while defendants no. 3 to 6 Rs.3,50,000/- (Rs.7,50,000/-) on different occasion.

4. It has further been pleaded that at the time of negotiation, execution of agreement, the defendants fully assured with regard to the land in question being free from any kind of infirmity vice save and except mutation could be effected relating to some area in their names whereupon, it was agreed amongst the parties that after having mutation in their name, the defendants will inform the plaintiffs followed with registration of the sale deed which the defendants never obliged. During midst thereof, the plaintiffs got information through other sources to the fact that only 1.59½ acre of land is recorded in the name of the defendants while remaining 1.59½ acre of land still recorded in the name of Nathun Singh, son of Gopi Singh. The aforesaid information was conveyed to the defendants with a request that either the matter be finalized or, sale deed in respect of 1.59½ acre of land be executed after receiving the balance amount and after removal of hurdle, sale deed relating to the remaining 1.59½ acre be executed subsequently.

5. It has also been pleaded that the defendants adopted dillydallying tactics on the