Valmiki J. Mehta, J.

1. The subject suit is a suit for specific performance. The plaintiffs seek specific performance with respect to 36 bighas and 13 biswas of agricultural land comprising in Mustatil No.7, Kila No.1(35-13), Mustatil No.24, Kila No.1/1 (1-0). The plaintiffs rely upon two agreements to sell. The first agreement to sell is the written agreement to sell dated 27.8.1988 and the second agreement is an oral agreement to sell dated 7.1.1989. As per the 1st agreement to sell dated 27.8.1988 (Ex.PW4/1/Ex.P1) the subject land comprising 36 bighas and 13 biswas was agreed to be sold at Rs. 3 lacs per acre. The total price comes to about Rs. 22.5 lacs as stated to me by the counsel for the parties during the course of final arguments. Under the first agreement to sell dated 27.8.1988, the plaintiff No.1 paid a sum of Rs. 1.7 lacs. Under the agreement to sell since part of the subject land was occupied by the encroachers and who had constructed jhuggis, chawls, jhopries and hutments etc, the defendant No.1- proposed seller was to get the encroached portion vacated within 70 days and thereafter had to apply to the necessary authorities for taking permission for selling of the land. The agreement to sell further provided that in case jhuggis are not removed, plaintiff No.1 will have the option to purchase whole or part of the land which was not covered under the jhuggis.

2. Under the second and subsequent oral agreement to sell dated 7.1.1989, plaintiffs claim that the following are the salient terms:-

“a) That the oral agreement to sell dated 7.1.89 shall supersede the earlier agreement to sell dated 27.8.1988. b) Total consideration for the entire land of 36 bighas 13 biswas will be Rs. 3,75,000/- (Rupees three lakhs seventy five thousand only).

c) All the liabilities existing on the land in question shall be the responsibility of the plaintiff i.e., getting the land vacated from Jhuggy dwellers at the cost of the plaintiffs and getting the land released from the administration who have given mining permit to DSMDC for the entire land in question.

d) Levelling of the land will also be done by the plaintiffs at their own costs.

e) Compensation, if any, spend by the Administration as royalty for quarrying stones, and damages for causing ditched shall be receivable by the plaintiffs.”

3. The plaintiff No.1 further pleads in the plaint that since the plaintiff No.1 was entitled to nominate the persons to get the sale deed executed as the plaintiff No.1’s nominees, plaintiff Nos.2 and 3 were nominated on behalf of the plaintiff No.1 with respect to 1/3rd share each of the subject land. Each of the three plaintiffs were to get an area of 12 bighas and 4.5 biswas at a consideration of Rs. 1.25 lacs by each of the plaintiffs i.e. the total price of the land from about 22.5 lacs came down to Rs. 3.75 lacs inasmuch as the defendant No.1 could not remove the jhuggis/hutments and therefore the total land was taken by the three plaintiffs in three equal parts for a total consideration of Rs. 3.75 lacs. In the plaint, it is pleaded that the defendant No.2 as an attorney of the defendant No.1 received a sum of Rs. 1 lakh from plaintiff No.2 and executed receipts dated 14.3.1989. So far as plaintiff No.3 is concerned, the plaint alleges that vide a cheque of Rs. 1.25 lacs, the plaintiff No.3 paid his entire share of the sale consideration to the defendant no.1 through his attorney the defendant no.2. Plaintiff No.1 is said to have made payment of Rs. 1 lakh in cash. To clarify further on the payments aspect, as per para 8 of the plaint, plaintiff No.1 had paid Rs. 1 lakh in cash and plaintiff No.3 paid an amount of Rs. 1.25 lacs by cheque to the defendant No.2 as an attorney of the defendant No.1. Plaintiff No.2 also paid an amount of Rs. 1 lakh in cash similarly to the defendant No.2 as attorney of the defendant No.1. There are further averments in the plaint of the defendants signing various declarations for obtaining NOCs from the