Dr. Vineet Kothari, J.—This Appeal under Sec. 96, C.P.C is directed against the judgment and decree dt. 27.02.1986 passed by the learned Additional District & Sessions Judge No. 1, Alwar, decreeing the Civil Suit No. 48/82 filed by plaintiff Prem Prakash seeking specific performance of the Agreement to sell dt. 06.11.1978 by which defendant Lahiri agreed to sell his 1/4th share of the agricultural land, as specified in the plaint as well as in the impugned judgment, to the plaintiff for a sum of Rs. 13,000/- under which an advance of Rs. 2,000/- was paid to the defendant and the said Agreement Ex.-1 was executed on a stamp paper which was duly notarized.

2. According to the plaintiff, when the defendant refused to execute the sale-deed though the plaintiff expressed his readiness and willingness to perform his part of the contract and pay the balance amount under the said agreement of Rs. 11,000/-, the plaintiff preferred the present suit seeking specific performance of the contract.

3. On the basis of the pleadings of the parties, the learned trial Court framed the following issues;

(i) Whether the defendant had agreed to sell disputed land described in para No.1 of the plaint on 06.11.1978 for a sum of Rs. 13,000/- against which the defendant received an advance amount of Rs. 2000/- from the plaintiff and executed the agreement to sell in favour of the plaintiff?

(ii) Whether the plaintiff is entitled to receive damages to the extent of Rs. 4,000/- from the defendant as an alternative to the specific performance?

(iii) Relief.

4. The plaintiff led oral as well as documentary evidence in support of his case and produced Prem Prakash (PW-l), Heeralal (PW-2), Ram Prasad (PW3), Bhagwan Sahai (PW-4), Omkar lal (PW-5), Rajaram Bhagava, Advocate (PW6) and Agreement to sell (Ex.-1) receipt (Ex.-2), copy of notice (Ex.-3), receipt of post-office (Ex.-4) and acknowledgment receipt (Ex.-5). The defendant produced himself as DW-1 and did not lead any documentary evidence.

5. The learned trial Court after appreciating the aforesaid evidence, arrived at the finding while deciding issue No. 1 that the defendant had agreed to sell his 1/4 share of the agricultural land specified in the suit to the plaintiff for a sum of Rs. 13,000/- and had received a sum of Rs. 2,000/- against that and the mere denial on the part of the defendant that he did not execute any such agreement, was of no avail and he was liable for giving the specific performance of the contract and execute the sale-deed in favour of the plaintiff.

The learned trial Court further held that even if the said property was mortgaged with the bank by the plaintiff, the receipt of the balance consideration of Rs. 11,000/- may be first paid to the bank over the said property and the balance amount, if any, would be paid to the defendant. The trial Court accordingly decreed the suit. The bank was, however, neither a party before the trial Court, nor it is a party before this Court, therefore, the extent of charge or dues of the bank over the said land is not known as no evidence was led in this regard nor any issue was framed.

6. Dr. Y.C. Sharma, learned counsel appearing for the appellant-defendant urged that the grant of specific performance is a discretionary relief and in view of the high increase in price of the agricultural land since execution of the said agreement, the learned trial Court ought to have only awarded damages in favour of the plaintiff instead of granting specific performance. He further contended that it being a joint property of the defendant along with his other brothers, such transfer of land in specific performance of the contract could not be awarded by the learned trial Court.

7. Shri R.K. Jain, learned opposite counsel however contested its position and relied upon the following judgments in support of his submissions; (i) Continental Construction Co. Ltd. vs. State of Madhya Pradesh, (1988) 3 SCC 82, (ii) P.C. Varghese vs. Devaki Amma Balambika Devi and Others, (20

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