ORDER :

1. The present regular appeal has been preferred against the judgment and decree dated 30.03.1990 passed by the District Judge, Jalore in Regular Suit No. 02/1982 whereby the suit for specific performance of contract as preferred by the plaintiff respondents had been decreed.

2. The case of the plaintiff was that an agreement to sell dated 29.01.1974 was executed by defendant Dharam Chand in favour of plaintiff Bhuri Devi with respect to two plots at Shivaji Nagar Colony, Jalore. The said plots were agreed to be sold for a consideration of Rs.11,000/- out of which Rs.5,001/- was paid on the date of agreement itself that is, 29.01.1974, as advance. The remaining amount of Rs.5,999/- was agreed to be paid at the time of execution of the sale deed. It was also agreed between the parties that the defendant would get the sale deeds of the plots in question from the Municipal Board, Jalore within a period of six months and thereafter he would execute the sale deeds in favour of the plaintiff on payment of the remaining consideration amount.

3. The sale deeds were issued by the Municipal Board on 25.07.1979 and 26.07.1979 respectively in favour of the defendant but he, thereafter refused to execute the sale deeds in favour of the plaintiff and hence the plaintiff served notice dated 31.05.1980 on him. Despite the notice being served, the defendant failed to execute the sale deeds in her favour and therefore, the present suit for specific performance of contract with a prayer to direct the defendant to execute the sale deeds in her favour and in alternate, with a prayer for refund of the advance amount with interest, has been preferred.

4. Written statement was filed by defendant Dharam Chand wherein the factum of the agreement to sell was admitted but it was averred that the document dated 29.01.74 as placed on record by the plaintiff was a forged one. It was pleaded that the actual agreement was for an amount of Rs.51,000/- and not Rs.11,000/- as averred by the plaintiffs. The case of the defendant was that Rs.5,001/- was paid in advance and the remaining amount was to be paid after a period of six months at the time of execution of the sale deeds; the six months' time being accorded by the plaintiffs to the defendant to get the sale deeds issued in his favour from the Municipal Board. However, the sale deeds were not issued by the Municipal Board within a period of six months and therefore, the defendant offered repayment of the advance amount to the plaintiff or in the alternate, it was requested by the defendant that the remaining consideration amount be paid to him else the agreement would be deemed to be cancelled. The plaintiff refused to pay the remaining consideration amount and asked for cancellation of the agreement. Therefore, the agreement stood cancelled on 15.08.1974 and hence the plaintiff was not entitled for performance of any contract in her favour.

5. On basis of the pleadings as made by both the parties, the learned trial Court proceeded on to frame the following eight issues:

^^¼1½ D;k izfroknh us fooknxzLr IykWV :- 11000@& esa oknhx.k dks nsus dk bdjkj dj fnukad 29&1&1974 dks :- 5001@& oknhx.k ls izkIr dj oknhx.k ds gd esa fooknkLin bdjkj ukek laikfnr fd;k\

¼2½ D;k izfroknh ;g dg dj jftLVMZ cspkuukek oknhx.k ds i{k esa laikfnr djus ls budkj djrk jgk fd uxjikfydk ls fooknxzLr IykWVl ds lEcU/k esa mls iV~Vk izkIr ugha gqvk gS vkSj tqykbZ 1979 esa iV~Vk feyus ij Hkh vafre ckj 5&5&1980 dks cspkuukek jftLVªh djkus ls budkj fd;k vkSj blfy, nkok vof/k vUnj gS\

¼3½ D;k izfroknh oknhx.k ds i{k esa