RAJIV SAHAI ENDLAW, J.

1. The plaintiff seeks decree for specific performance of an agreement of sale of immovable property under Order 12 Rule 6 CPC. The application has been filed after the framing of issues.

.2. The plaintiff instituted the suit on 19th January, 2004 on the averments that the defendant had vide agreement to sell dated 15th February, 2001 agreed to sell the full terrace rights above the second floor of the building situated on plot of land admeasuring 725 square yards and bearing No. 33, NH-IV, Lajpat Nagar, New Delhi 110 024 for a total sale consideration of Rs 40 lacs out of which the plaintiff had paid Rs 15 lacs at the time of agreement to sell on 15th February, 2001 and remaining sale consideration was payable at the time of execution of the sale deed after conversion of lease hold rights in the land underneath into freehold. The plaintiff claimed that on 15th February, 2001 the defendant in part performance of the agreement to sell had handed over the vacant, physical possession of the said open terrace to the plaintiff and which fact was also mentioned in the agreement to sell. Besides the agreement to sell, a receipt and an affidavit, also stated to hav

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