JUDGMENT

Mahendar Kumar Goyal, J. - The instant first appeal has been preferred by the appellant-plaintiff (for brevity-'the appellant') aggrieved by the judgment and decree dated 16.03.1996 passed by the learned Additional District Judge No. 6, Jaipur City, Jaipur, whereby, the Civil Suit No. 474/1989 seeking decree of specific performance of the agreement dated 24.10.1988, mesne profit as well as permanent injunction, has been dismissed.

2. The facts in brief are that the appellant filed a suit with the averments that the respondent-defendant no. 1 (for brevity-'the respondent no. 1') agreed to sell, vide sale agreement dated 24.10.1988, the property bearing municipal no. 2820/21, Kalyan Ji Ka Rasta Mohalla Nayariyan, Jaipur, comprising of a shop on ground floor with multi-storied residential house constructed thereon for a total sale consideration of Rs. 2,13,000/- under which an advance of Rs. 13,000/- was paid on that day itself. Under the agreement, the respondent no. 1 was required to hand over possession of the entire property to the appellant within a period of one and a half months from the date of its execution on receipt of Rs. 1,00,000/- and the balance sale consideration of Rs. 1,00,000/- was to be paid at the time of registration of the sale deed, which was to be done within two months from the date of the agreement. It was averred that the time for execution of the sale deed was extended by 15.12.1988; but, when the appellant approached the respondent no. 1 with the demand draft of Rs. 1,00,000/- on 15.12.1988, neither the demand draft was accepted nor possession of the property was handed over. It was alleged that thereafter, the respondent no. 1 did not approve the draft sale deed sent to him by the appellant and also did not get the income tax clearance certificate. It was submitted that when the respondent no. 1 was requested vide notice dated 15.12.1988, telegram dated 23.12.1988 and the legal notice dated 24.12.1988 to execute the sale deed; he, vide reply dated 2.01.1989 sent through his counsel, responded stating that he had already entered into an agreement to sell with Adi Gaur Brahmin Moorti Kalakar Sanstha, Jaipur and denied execution of any agreement in his favour. In these circumstances, the appellant sought the decree, as aforesaid.

3. During the pendency of suit, the Adi Gaur Brahmin Moorti Kalakar Sanstha, Jaipur, on its application under Order 1 Rule 10 CPC, came to be impleaded as the respondent-defendant no. 2 (for brevity-'the respondent no. 2').

4. The respondent no. 1 in his written statement, admitted receipt of Rs. 13,000/- in cash; but, as loan and not towards part sale consideration. He denied execution of the agreement to sell dated 24.10.1988 in favour of the appellant. He contended that to secure the loan; on asking of the appellant, he has signed certain documents without any intention of selling the property as he has already entered into its sale agreement dated 27.08.1981 with the respondent no. 2. He averred that he has handed over possession of the entire property to the Sanstha on 14.09.1988 receiving part sale consideration of Rs. 20,000/- in cash. He stated that he has received balance sale consideration of Rs. 80,000/- through account payee cheque on 13.05.1989 and has, thus, received entire sale consideration of Rs. 1,00,000/- for whole of the property save the shop on the ground floor and has also executed the sale deed on 20.07.1989. He submitted that sale deed of the shop only remained to be executed; which, he would do as and when so required by the respondent no. 2. He pleaded that since, as on 24.10.1988, he was not in possession of any part of the property in question, there was no occasion for execution of the agreement to sell in favour of the appellant. He, therefore, prayed for dismissal of the suit.

5. The respondent no. 2 in its written statement denied execution of any agreement to sell by the respondent no. 1 in appellant's favour. It was averred that the r