JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. Challenge in the present appeal is to the Judgment and decree dated 22/11/2016 passed in Civil Suit No. 6A/2012 by the I Additional District Judge, Bilaspur, whereby a suit for specific performance was decreed in favour of the Respondent/Plaintiff.

2. The brief facts of the case are that Plaintiff-Rajdeep Arora through his power of attorney holder Chitpal Singh Waliya, filed a civil suit on 21/02/2012 on the ground that the original defendant Kheduram (since dead) had entered into an agreement for sale of his property on 18/12/2009 for a sale consideration of Rs.12,25,000/-, out of it an amount of Rs.2,00,000/- was paid towards earnest money. The property comprises of total 8 Khasara numbers i.e. (2033/6, 2036/3), (2033/7, 2036/4), (2033/8, 2036/5), 2028/1, 2035/3, 2028/4, 2036/1, 2028/2), admeasuring total 4.27 acres situated at Mopka, tahsil and district Bilaspur.

3. Further pleading is that during the subsistence of the contract, an amount of Rs.50,000/- was paid on 24/02/2010 thereby the amount of earnest money was inflated to Rs.2,50,000/-, and date for execution of the sale deed which was earlier fixed for 17/03/2010, was further extended. The plaintiff averred that despite execution of agreement, the sale deed was not executed and in course of such facts it came to notice of the plaintiff that a civil suit filed by a third party namely Sonu against the defendant is pending. However, despite that the plaintiff served notices to execute the sale deed, but eventually it was not materialized. Therefore, the notices dated 10/06/2010 (Ex.P-3) and 22/06/2011 (Ex.P-4) were issued for execution of the sale deed, but ultimately when the same having not been materialized, the civil suit was filed.

4. The defendant denied the plaint allegations and stated that on the contrary the defendant had issued the notices for execution of the sale deed, but for some reasons or other, the plaintiff avoided the same. The primary defence was that the defendant was not ready and willing to execute the sale deed and further was not showing his willingness, coupled with the fact that the property in question was more valuable than the sale consideration which was shown in the agreement, and because of the fact that the plaintiff did not have the sufficient fund to his credit he himself has failed to execute the sale deed. During pendency of the suit, the original defendant Kheduram died issueless, as such, Ghanshyam Tiwari was arrayed as a legal representative who was nephew of the deceased. Ghanshyam Tiwari adopted the written statement filed by the deceased Kheduram and both the parties adduced their evidence.

5. The plaintiff on his behalf examined his father Charanjeet Arora as PW1; Chitpal Singh Waliya as PW3and Rajendra Singh Domar as PW2. Defendant-Ghanshyam Tiwari examined himself before the Court.

6. The learned Additional District Judge, on the basis of evidence, held that the agreement dated 18/12/2009 was proved to have been executed and thus decreed the suit for specific performance in favour of the Respondent/Plaintiff. Hence, this appeal.

7. (i) Learned counsel for the appellant/defendant would submit that though the suit was filed by plaintiff Rajdeep Arora through his power of Attorney holder Chitpal Singh Waliya (PW3), the plaintiff was not examined before the Court. Learned counsel would further submit that perusal of the plaint would show that it bears the signature of Plaintiff-Rajdeep Arora. It is stated the affidavit under Order 18 Rule 5 which was placed bears his signature, but Rajdeep Arora did not expose himself for cross-examination. They would further submit that the power of attorney holder Chitpal Singh Waliya who was examined as PW3 was not a party to the transaction as he had no personal knowledge, therefore, his evidence cannot be read in support of the plaintiff-Rajdeep Arora in absence of his examination-in-chief.

(ii) Learned counsel placed reliance on the law laid down by the Supr