JUDGMENT :

SUDESH BANSAL, J.

1. This civil first appeal under Section 96 of Civil Procedure Code has been filed by appellant-defendant No. 2 assailing the judgment and decree dated 19.09.1989 passed by the Court of Additional District Judge, Dholpur in Civil Suit No. 36/1983 titled Lallu Basant Singh vs. Naseer Ahamd and Another whereby and whereunder civil suit for specific performance of an agreement to sell dated 09.06.1978 has been decreed and defendant Nos. 1 and 2 have been directed to execute the sale deed and hand over possession of the house in question to respondent-plaintiff, after receiving balance sale consideration of Rs. 4,000/-.

2. Parties to the present appeal would be referred hereinafter with the same nomenclature as were called before the trial court i.e. appellant as defendant No. 2, plaintiff as respondent No. 1 and respondent No. 2 as defendant No. 1.

2.1 It may be noticed that during pedency of this first appeal, plaintiff and defendant No. 2 have passed away and their legal heirs have come on record. As far as defendant No. 1-Naseer Ahmad is concerned, initially he was party in the present first appeal as respondent No. 2 but he died on 20.04.1995 and thereafter his name was sought to be deleted. Accordingly vide order dated 21.02.2011, the name of respondent No. 2-Naseer Ahmad has been allowed to be deleted from the array of title page of the present appeal. Hence, at the time of deciding this first appeal, defendant No. 1-Naseer Ahmad has died and is not party to the present first appeal nor his legal representatives have come on record.

3. Facts of the case, in brief, are that:

3.1 The original plaintiff-Lallu Basant Singh instituted present civil suit for specific performance on 18.10.1979 stating inter-alia that defendant No. 1-Naseer Ahmad (died during pendency of appeal and name has been deleted vide order dated 21.02.2011) executed an agreement to sell dated 09.06.1978 to sell his house at Dholpur to plaintiff against sale consideration of Rs. 12,000/- and, after receiving Rs. 8,000/- as an advance, agreed to execute the sale deed within a period of one year after receiving balance sale consideration of Rs. 4,000/- and also assured to hand over the possession of the house in question to plaintiff.

3.2 The plaintiff has admitted in the plaint that at the time of execution of sale agreement, portion of house was mortgaged with defendant No. 2-Safdar Ali (presently appellant and now represented through legal heirs) and the possession of suit property was with defendant No. 2 as mortgagee and there was one more another tenant in the suit property but the defendant No. 1 had given an assurance to plaintiff that he would get redeem the property from mortgage and would hand over the vacant possession of the suit property to plaintiff.

3.3 Plaintiff further stated in the plaint that when defendant No. 1 did not execute the sale deed within a period of one year, despite making demands from the side of plaintiff, he went to Firozabad to met with defendant No. 1 and then defendant No. 1 told that he has already executed sale deed dated 19.10.1978 in favour of defendant No. 2, who was in possession as mortgagee in portion of suit property, and the defendant No. 1 clearly denied to execute the sale deed in favour of plaintiff pursuant to agreement dated 09.06.1978.

3.4 Then plaintiff alleges to serve a notice dated 21.09.1979 upon defendant No. 1 as well as defendant No. 2 and instituted the present suit on 18.10.1979.

3.5 Here it may be noticed that in para No. 6 of plaint, the plaintiff has specifically pleaded that the sale deed dated 19.10.1978 executed by defendant No. 1 in favour of defendant No. 2 for the portion of suit property is a collusive sale deed and the same has been executed just to confiscate Rs. 8,000/- of plaintiff, paid to defendant No. 1 as an advance and therefore, the subsequent sale deed dated 19.10.1978 is null and void qua the plaintiff. But in the prayer clause of plaint, the plaintiff has