JUDGMENT :

B. K. NAYAK, J.

This appeal has been filed challenging the judgment and decree dated 16.03.2010 and 30.03.2010 respectively passed by the learned Civil Judge (Senior Division), Bhubaneswar in Civil Suit No.328 of 2005.

2. Respondent no.1 as plaintiff filed the suit against defendant no.1-respondent no.2 for specific performance of contract for sale of the disputed land measuring Ac.0.05 dec. in plot no.103, under Khata no.1032/288 situated in mouza-Sahid Nagar, Bhubaneswar.

The case of the plaintiff is that defendant no.1 holds the disputed property as a lessee under the G.A. Department of Government of Orissa. Defendant no.1 being in urgent need of money proposed to sell the suit property and was in search of a suitable customer. One Rashmirekha Tripathy is the cousin (maternal uncle’s daughter) of defendant no.1. The said Rashmirekha and her husband, Hrusikesh Tripathy were known to the plaintiff and her husband, who are doctors and persuaded them to purchase the suit property. The plaintiff and her husband having agreed, an agreement was entered between the plaintiff and defendant no.1 for sale of the land for a consideration of Rs.23,00,000/-towards land value and Rs.35,200/-towards value of the house standing on the suit land. It was also agreed that at the time of execution of the agreement, the plaintiff would pay to defendant no.1 Rs.5,00,000/- by way of advance consideration. Accordingly, on 15.12.2004 the agreement for sale (Ext.1) was executed by defendant no.1, which was authenticated before the Notary Public, Bhubaneswar. It is further pleaded by the plaintiff that as agreed between the parties the sale of the suit land was to be effected in favour of the plaintiff and her husband jointly. The price agreed being not suitable to the plaintiff’s husband, who was also absent on the date of execution of the agreement, the agreement was executed in favour of only the plaintiff in presence of witnesses. As per the agreement, it was stipulated that the defendant would apply to the G.A. Department for necessary permission for sale of the land in favour of the plaintiff. It is further pleaded that after the parties and witnesses signed and the agreement was attested by the Notary, defendant no.1 demanded Rs.5,00,000/- as advance consideration money. When the plaintiff went through the agreement, she found that it had been prepared contrary to their earlier discussion and the consideration for the land was stated in the agreement to be Rs.31,00,000/-. The plaintiff did not agree to such new terms and was coming back when the witnesses intervened and accordingly, on request of defendant no.1 a fresh written agreement incorporating the original terms as agreed between the parties was prepared, signed and attested by the Notary, which is the suit agreement (Ext.1). It was further stated that the plaintiff was short of money at the time of execution of agreement and she paid a sum of Rs.3,00,000/- to defendant no.1 as advance consideration money, receipt whereof has been acknowledged in the agreement itself. The first agreement in which the consideration was stipulated at Rs.31,00,000/- was taken back by defendant no.1 with intention to destroy the same. The further case of the plaintiff is that about a week after the execution of agreement, the plaintiff paid the remaining sum of Rs.2,00,000/- to the defendant towards part consideration, but did not insist for a receipt from the defendant. As per the agreement, the sale deed was to be executed within three months. Since defendant no.1 did not apply to the G.A. Department for necessary permission for transfer, the plaintiff on 14.02.2005 issued a notice to defendant no.1 requesting him to apply for the permission and at the same time apprehending that defendant no.1 might sell the land to any other person, the plaintiff also published a notice in the daily newspaper (Dharitri) indicating about the agreement of sale. Defendant no.1 however avoided to receive the noti