The burden of proof in a suit for specific performance lies with the party claiming fraud, who is required to produce cogent material on record to support the claim.

Mahesh Grover, J.

1. The application is accepted and the appellant is allowed to remove the deficiency of court-fee of Rs. 12/-. C.M.No. 14639-C of 2009 The application is allowed as prayed for. C.M.No.14641-C of 2009 The application is allowed and delay of 42 days in re-filing of the appeal is condoned. C.M.Nos.l4637-C and 14640-C of 2009 and R.S.A.No.4945 of 2009. This Regular Second Appeal has been preferred against the judgments and decrees dated 3.8.2006 and 10.2.2009 passed respectively by the Civil Judge (Junior Division), Phillaur (referred to hereinafter as the trial Court) and the Additional District Judge, Jalandhar (described as the first appellate Court). Since it is barred by limitation, C.M.No. 14640-C of 2009 has been moved for condonation of 23 days delay, whereas C.M.No.l4637-C of 2009 has been filed for staying the operation and execution of the impugned judgments and decrees.

2. A suit for possession by way of specific performance of an agreement to sell dated 27.2.2001 was initiated by the plaintiffs-respondents in respect of the suit property which is a residential house situated on the land measuring five marlas fully detailed in the head note of the plaint. It was pleaded by the respondents that the agreement to sell had been executed by the defendant-appellant qua the suit property for a total consideration of Rs.1,40,000/- out of which Rs.1,20,000/- were paid as earnest money. It was to be translated into a sale deed by 26.6.2001, but the appellant failed to carry out her part of responsibility forcing them to file the suit. It was also pleaded that to show their readiness and willingness, the respondents had remained present in the office of Sub Registrar, Phillaur on the stipulated date, but the appellant did not turn up.

3. The appellant contested the suit and set up a plea of fraud. She pleaded that it was inconceivable that on 27.2.2001, she had purchased the suit property from one Malkiat Singh and that she would agree to sell it by way of the agreement to sell in question on the same very day in favour of the respondents. It was further pleaded that the deed writer and other persons whose names find mention in the agreement to sell had defrauded her by obtaining her signatures on plain papers. She completely denied the execution of the agreement to sell in question and receipt of any earnest money. The parties went to trial on the following issues:-

1. Whether the defendant entered into an agreement to sell dated 27.2.2001 and received Rs.1,20,000/- as earnest money? OPP

2. Whether the plaintiff is entitled to possession by way of specific performance of agreement to sell dated 27.2.2001? OPP

3. Whether the plaintiff is ready and willing to perform his part of contract and still ready and willing to do the same? OPP

4. Whether plaintiff is entitled for injunction as prayed for? OPP

5. Whether in the alternative plaintiff is entitled for recovery of Rs. 1,20,000/- along with interest at the rate of 18% per annum? OPP

6. Whether plaintiff has got no locus standi to file the present suit? OPD

7. Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD

8. Relief.

4. The trial Court, as also the first appellate Court came to the conclusion that there was a valid agreement to sell for which earnest money of Rs.1,20,000/- was paid and the respondents were always ready and willing to perform their part of agreement, whereas the appellant had failed to do so and further that the respondents were present in the office of the Sub Registrar, Phillaur on the appointed date, but the appellant did not turn up and consequently, decreed the suit.

5. Aggrieved by the findings recorded by the Courts below, the present appeal has been filed.

6. It has been contended by the learned counsel for the appellant that it is not possible that a person, who acquires title by virtue of a registered sale deed on a particular day, would agree to alienate the same property on the same day