Rajesh Kumar Verma, J. – Heard Mr.Pramod Kumar Sinha, learned counsel for the appellants and Mr.Awadhesh Kumar, learned counsel for the respondents.

2. This appeal is directed against the judgment and decree dated 26.07.2003 passed by learned 4th Subordinate Judge, Bhagalpur, in Title Suit No.242 of 1993 whereby and whereunder the defendant No.1 is directed to execute the sale deed in respect of Schedule-III property in favour of the plaintiff within 60 days after receiving the balance consideration amount of Rs.61,001/- (Rs. Sixty One Thousand One), failing which the plaintiff is entitled to get the sale deed executed through the process of the Court after depositing the balance consideration amount.

3. The plaintiff, who is respondent in the present appeal, has filed suit for specific performance of contract, in respect of property Schedule-III, upon receiving balance amount of consideration and also prayed refund of whole amount as alternative relief. The case of the plaintiff is that on 23.11.1989, defendant No.1 in presence of her husband Babu Girja Nandan Singh orally agreed to sell property Schedule-I for Rs.7,50,001/- (Rs. Seven Lacs Fifty Thousand One) the said property includes her homestead lands i.e. 18 kathas alongwith standing building thereon known as Gol Kothi.

4. The property ( Municipal Plot No.939 of Khata No. 279) is in peaceful possession of defendant No.1 but front portion of said Gol Kothi is under tenancy of Food Corporation of India on monthly rent. The case of the plaintiff is that he has paid Rs. 25,000/-(Rs. Twenty Five Thousand) to defendant No.1 on 23.11.1989 in cash of Rs. 50,000/-(Rs. Fifty Thousand) to defendant No.1 on 24.11.1989 by way of demand draft. It was agreed between the parties that defendant No.1would ask for remaining consideration amount from time to time when required and she will execute the sale deed for said property for consideration amount of Rs. 6,45,001/- (Rs. Six Lacs Forty Five Thousand One). The case of the plaintiff was that he has already paid Rs.6,72,000/-(Rs.Six Lacs Seventy Two Thousand) by part consideration on various dates between 23.11.1989 to 15.04.1989 where Rs.4,78,000/-(Rs. Four Lacs Seventy Eight Thousand) by way of demand draft in favour of defendant No.1, her husband, namely, Girija Nandan Singh, her sons, representatives, nominees and agents. In consequence of the part performance, defendant No.1 allowed to plaintiff to occupy Gol Kothi and also allow to construct double storied building on 05 kathas out of 07 Kathas of the land, the defendant No.1 on 02.06.1990 and 03.07.1991 also executed two sale deeds, 02 kathas without knowledge of plaintiff and handed over the registration receipt to plaintiff. Plaintiff remitted Rs. 35,000/-(Thirty Five Thousand) out of Rs. 78,001/- (Rs. Seventy Eight Thousand One) by three bank drafts in favour of defendant No.1 but the same was returned by defendant No.1. The case of the plaintiff is that the plaintiff was apprehended that the defendant No.1 was in search of some other buyer of higher price for higher value plaintiff then sent notice regarding the same to defendant No.1 on 07.04.1992 requesting to complete the same in respect of Gol Kothi. The land in question (disputed) is already transferred by defendant No.1 in favour of plaintiff to various sale deeds described in Schedule-II of plaint.

5. The Plaintiff-respondent No.1 party Smt. Chandni Devi Chaudhary instituted the T.S. No. 242/1993 on 07.12.1993, in the court of the Subordinate Judge, Bhagalpur for (1) passing of a decree for specific performance of contract directing the original defendant 1st party-original appellant, to execute the sale deed in respect of Schedule-III Property in her favour on deposit of 61,001/-(Rs. Sixty One Thousand One) only being balance consideration money, (ii) if it could not be possible for the court to pass a decree for specific performance of contract as sought for balance money of deposit with interest at the rate of 12% per an