JUDGMENT :

Manindra Mohan Shrivastava, J.

1. This common order shall govern disposal of the aforesaid two appeals, First Appeal No.311/2015 filed by the plaintiff and First Appeal No. 276/2015 filed by the defendant Ramnarayan Tiwari.

The plaintiff suit was partly decreed in the manner that, though, the claim for specific performance was not decreed, the advance money was directed to be returned to the plaintiff. Against the decree of return of advance money of Rs. 2,21,000/-, the defendant has filed the cross appeal.

2. Santosh Paal filed a suit seeking decree of specific performance of contract, based on agreement dated 18.02.2009, Ex.P-6, on the pleadings, inter-alia, that the defendant entered into an agreement of sale of the disputed property admesauring 13.20 acres of land for total consideration of Rs. 7,00,000/- with the plaintiff and executed an agreement Ex.P-6 on 18.02.2009. Further case of the plaintiff was that by way of advance, Rs. 2,21,000/- was also paid by the plaintiff to the defendant. According to the plaintiff, he was ready and willing to perform his part of contract by depositing balance amount of consideration within the stipulated period of six months, within which the sale deed was executed, despite repeated request, the defendant started avoiding to execute the sale deed and finally before expiry of six months, the plaintiff sent registered notice dated 25.07.2009 to the defendant stating that the plaintiff was ready and willing to perform his part of contract by paying the balance amount of consideration and the defendant should execute the sale deed. But in reply to the notice, the defendant denied such agreement and finally the plaintiff had no other option but to file suit seeking decree of specific performance of contract.

3. The defendant's stand in the written statement was that he never executed such agreement and the agreement was forged and fabricated.

4. The learned trial Court framed as many as five issues.

5. Learned trial Court framed specific issue as to whether the agreement relied upon by the plaintiff was forged document on which, signature of defendant No. 1 was fraudulently obtained. Learned trial Court also framed issue as to whether such an agreement dated 18.02.2009 was executed in which, the defendant agreed to sell 13.20 acres of land for consideration of Rs. 7,00,000/- and obtained an advance amount of Rs. 2,21,000/-. Learned trial Court also framed specific issue as to whether the plaintiff was ready and willing to perform his part of contract but the defendant avoided.

6. On first and the third issue i.e. with regard to proof of agreement and as to whether the defendant signatures were obtained by fraudulent means, the learned trial Court reached to the conclusion that the defendant plea of fraud or the documents being forged cannot be accepted in view of specific evidence led by the plaintiff himself regarding execution of agreement dated 18.02.2009, proved by one of his attesting witnesses and also the specific evidence of the handwriting expert that the signature obtaining on agreement dated 18.02.2009 is of the defendant No. 1 Ramnarayan Tiwari. However, having held so, the learned trial Court, on the issue with regard to readiness and willingness, recorded a finding that the plaintiff was possessed of meager means and could not prove that he had sufficient fund to pay the balance amount and viewed from that point, he was not ready to perform his part of contract, resulting in dismissal of the suit.

7. Learned counsel appearing for appellant/plaintiff Santosh Paal in First appeal No. 311 of 2015, would argue that the learned trial Court having held the agreement proved, rejecting the defendant plea of his signature having been fraudulently obtained, ought to have granted equitable relief of specific performance of contract because the plaintiff had paid substantial amount Rs. 2,21,000/- which, by itself, is sufficient to draw presumption in his favour that the plaintiff had the