JUDGMENT :

M.R. Verma, J. –

1. This second appeal under Section 100 of the Civil Procedure Code has been preferred by the appellant/defendant (hereafter referred to as 'the defendant') against the judgment and decree dated 17.12.1998 passed by the learned District Judge, Solan whereby the appeal preferred by the respondent/plaintiff (hereafter referred to as 'the plaintiff') against the judgment and decree dated 10.4.1996 passed by the learned Senior Sub Judge, Solan has been set aside and the suit of the plaintiff has been decreed for specific performance of the contract.

2. Briefly stated, the relevant facts for the purpose of disposal of this appeal are that the plaintiff instituted a suit against the defendant and one Nanak Chand - original/defendant, who has since died and is now represented by his legal representatives - proforma respondents/defendants No. 2 to 6 (hereafter referred to as 'the codefendants') for specific performance of a contract dated 19.1.1990 where by the defendant and predecessor-in-interest of the codefendants agreed to sell land khasra No. 303/3/2 and 304/1 measuring 98 square meters situate in Mauza Lower Bazaar, Solan (hereafter referred to as 'the suit land') for consideration in the sum of Rs. 1,00,000/- and in the alternative for refund of earnest money of Rs. 75,000/- paid in part payment of the sale consideration to the defendant. Case of the plaintiff is that the aforesaid agreement was executed between the parties thereto and a sum of Rs. 75,000/- as earnest money was paid to the defendant. Case of the plaintiff is that the aforesaid agreement was executed between the parties thereto and - a sum of Rs. 75,000/- as earnest money was paid to the defendant and predecessor-in-interest of the co-defendants and was to be adjusted against the sale consideration. The remaining amount of sale consideration was to be paid by the plaintiff on the date of execution and registration of the sale deed which was to be executed within six months of the execution of the agreement. The plaintiff has been approaching the defendant and the predecessor-in-interest of the co-defendants for getting the sale deed executed and registered but was put off on one pretext or the other. On 8.2.1990 when the plaintiff approached the defendant, who was also acting as Central Power of Attorney of the predecessor-in-interest of the codefendants, the defendant unilaterally cancelled the agreement and sent two post dated cheques for Rs. 41,000/- and Rs. 50,000/- which the plaintiff did not accept. Doubting the bona fides of the defendant, the plaintiff instituted a suit for injunction restraining the defendant and the predecessor-in-interest of the co-defendants from selling/alienating the suit land. After institution of the sad suit, the defendant approached the plaintiff, took back his aforesaid cheques and promised to abide by the agreement dated 19.1.1990. However, despite efforts and service of notice by the plaintiff, the defendant and predecessor-in-interest of the co-defendants failed to perform their part of the agreement, hence, this suit.

3. The suit was contested by the defendants. In the written Statement, preliminary objection was taken that the plaintiff has no locus-standi to institute the present suit. On merits, it was averred. hat the plaintiff got certain papers signed from the defendant without making any payment to him and that the agreement n question does not bear the signatures of the defendant. It was further claimed that the cheques were given to the plaintiff as loan and not as claimed in the plaint. It was further contended that no sale deed was to be executed and the claim of the plaintiff is based on concocted and false version.

4. On the pleadings of the parties, the trial Court framed the following issues :

1. Whether defendant by agreement deed 19.1.1990 agreed to sell suit property and recovered Rs. 75,000/- as earnest money ? ...OPP

2. Whether defendants have declined to perform their part of th