KAN SINGH, J —This is a defendants second appeal arising out of a suit for specific performance of a contract of sale of an agricultural land measuring 7 Bighas 5 Biswas comprised in Khasras Nos. 488 and 489 situated in village Padu, Tehsil Merta, Disrtict Nagaur.

2. The plaintiff came forward with the case that on 29-6 67 the defendant agreed to sell him his agricultural land for Rs. 1,001/- and executed a sale deed on a stamp paper, but he refused to have it registered. He further averred that he was always ready and willing to perform his part of the contract for bearing the expenses for registration. In the alternative the plaintiff prayed for refund of the money paid by him to the defendant.

3. The defendant contested the suit. He denied that he entored into any contract of sale with the plaintiff, as alleged. He further denied the execution of the sale document as also the receipt acknowledging the payment of Rs. 1,001/-to him. He further raised the plea that the suit was triable exclusively by a revenue court.

4. On the pleadings of the parties the learned Additional Munsif, Merta, by whom the suit came to be tried, framed the following issues:

"(1) Whether the defendant sold his Khatedari land Khasara Nos. 488-489 to the plaintiff located within limits of Riya Badi for a sum of Rs. 1,001/- and executed an agreement in favour of the plaintiff?

(2) Whether the plaintiff is entitled to have the possession of the land in specific performance of the contract?

(3) Whether the plaintiff is entitled to have the registration from the defendant?

(4) Whether the agreement is inadmissible in evidence?

(5) Whether the plaintiff had more land than the ceiling limit, consequently agreement of sale of land is illegal and defendant had no right to sell?

(6) Relief"

5. Both the parties produced their evidence- Issue No. 4 was decided by the learned Additional Munsif as a preliminary issue and he held that on payment of sufficient stamp duty the document could be received in evidence. The requisite duty seems to have been paid. On consideration of the evidence, the learned Additional Munsif came to the conclusion that the sale document had been executed by the defendant and he had further received the consideration. Issue No. 3 was also decided in favour of the plaintiff. Issue No. 2 came to be deleted subsequently when the plaint was amended by the plaintiff.

6. I may mention here that whereas the plaintiff amended the plaint, the defendant did not choose to file any fresh written statement, but submitted before the trial court that the written statement in reply to the unamanded plaint be taken to be the written statement to the amended pliant. While amending the plaint the plaintiff had confined his prayer to one for specific performance of the contract only and the prayer for possession was not included.

7. No evidence was led by the defendant regarding issue No 5 and, therefore, it was decided against the defendant. In the result the learned Additional Munsif decreed the suit for specific performance and ordered the defendant to execute a regular sale-deed for the land in question and have it registered.

8. Aggrieved by the decree of the learned Additional Munsif the defendant went up in appeal to the Court of the Civil Judge, Merta, who dismissed to appeal. It is in these circumstances that the second appeal has been filed by the defendant to this Court.

9. Learned counsel for the appellant has challenged the decree of the court below mainly on two grounds. In the first place he contended that the civil court had no jurisdiction to try the suit as the same was exclusively triable by a revenue Court. In the second place he contended that a suit for specific performance of the contract of sale without asking for the relief of the possession of the land was not maintainable. Learned counsel placed reliance on a number of cases, which I propose to deal with hereinafter.

10. I may take up the second contention first as its determination will be helpfu

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