ORDER :

1. This appeal has been preferred by the Plaintiff under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) questioning the legality and propriety of the judgment and decree dated 28.10.2010 passed in Civil Suit No. 07A/2007, whereby the learned trial Court has dismissed the Plaintiff's claim for specific performance of contract. The parties to this appeal shall be referred hereinafter as per their description before the Court below.

2. The facts, which are essential for adjudication of this appeal, are that the Plaintiff-Munnalal Agrawal instituted a suit claiming specific performance of contract by submitting, inter alia, that an agreement to sale dated 26.12.2001 was executed in his favour by Defendant No. 1-Smt. Sobhna Chourasiya agreeing to alienate the suit land admeasuring 42.25 square meter, which is the part of godown constructed in total area of 165.75 square meters situated at Sheet No. 17 Plot No. 12 of village Kawardha. It was agreed to be sold at the rate of Rs. 350/- per square meter, i.e. for a total consideration of Rs. 1,59,110/- upon receiving the earnest amount of Rs. 20,000/-. According to the Plaintiff, since the suit land was occupied by a tenant, therefore, a condition was stipulated therein, by which, it was got to be vacated by the said Defendant within the period of 6 months and a sale deed was to be registered thereafter within the period of 7 days from the date of receiving the information in this regard. Further contention of him is that despite repeated requests being made, no action was initiated by the said Defendant for obtaining the vacant possession of the suit premises, as required under the terms and conditions of the alleged agreement to sale even despite the issuance of notices dated 28.05.2002 and 21.03.2003, which led to the institution of the suit in the instant nature, instituted on 17.05.2003. It is pleaded further by way of incorporating the amendment in the plaint that during pendency of the suit, the said Defendant has sold the same to Defendant No. 2-Smt. Saraswati Yadav, wife of the tenant Narayan Yadav by executing a registered deed of sale dated 31.03.2004 and which is, therefore, not binding upon him.

3. While contesting the claim, it was stated by Defendant No. 1-Smt. Sobhna Chourasiya that the property in question was agreed to be sold at the rate of Rs. 700/- per square foot, i.e. for a total consideration of Rs. 3,17,926/- upon receiving the earnest amount of Rs. 20,000/- and half of the sale consideration was to be paid by the Plaintiff within the period of 6 months, else the earnest amount of Rs. 20,000/- paid by him shall be forfeited. It is pleaded further that the alleged amount of Rs. 350/- instead of Rs. 700/- was mentioned therein at the instance of the Plaintiff so as to save the registration charges and stamp duty by him. The real transaction was, however, for alienation of the land in question at the rate of Rs. 700/- per square foot and half of the sale consideration was to be paid by him within the period of 6 months. It is contested further on the ground that as the Plaintiff has failed to deposit the half of the sale consideration within the period of 6 months, therefore, the alleged agreement to sale has come to an end and the Plaintiff's suit is, therefore, liable to be dismissed.

4. The Defendant No. 2-Smt. Saraswati Yadav has contested the claim on the ground that she being the bona fide purchaser acquired her valid right, title and interest over the suit land on the basis of the registered deed of sale dated 31.03.2004 as she was not aware regarding the execution of the alleged agreement to sale dated 26.12.2001 with the Plaintiff.

5. The Plaintiff has examined himself as PW-1 and the attesting witness to the alleged agreement to sale (Ex.P.1), namely, Goutam Sahu (PW-2) and also the document writer of it, namely Duregesh Kesharwani (PW-3) in support of his claim. While, Defendant No. 1 has examined herself as DW-1