Agreement to Sell - Appellant is a mortgagee alongwith possession - Plaintiff is not in possession of any part of land - Any decree of specific performance of contract would result into disturbing long possession of 32 years of the mortgagee.

1. This is defendant s appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code ) challenging the view taken by the learned lower Appellate Court holding that the plaintiff-respondent No. 1 Brij Mohan Kaura (now represented by his LRs) is entitled to a decree in his favour for possession by specific performance of agreement to sell dated 28-12-1974 (Ex.P1). The aforementioned decree has been passed against the defendant-appellant Sant Ram (the vendee) and Karam Singh, defendant-respondent (the vendor, who is now represented by his L.Rs.). According to the decree, plaintiff-respondent Brij Mohan Kaura is required to pay the balance price of Rs. 40,000/- to the defendant-appellant Sant Ram within the specified period of two months. Sant Ram along with defendant-respondent No. 2 is further required to execute the sale deed in respect of the suit land in favour of the plaintiff-respondent No. 1 on the receipt of the aforesaid amount. In case of their failure, plaintiff-respondent No. 1 was to deposit the balance amount in the Court of learned Sub- Judge and the sale deed was to be executed through the Court. The expenses for registration of the sale deed and purchase of stamps is to be borne by the plaintiff-respondent No. 1. It is pertinent to mention that the trial Court had dismissed the suit by accepting the agreement to sell, dated 8-7-1974 (Ex.D1) executed by the defendant-respondent No. 2 in favour of defendant-appellant Sant Ram. It was held that the agreement to sell dated 8-7-1974 (Ex.D1) was a genuine document and it could not be considered as fictitious. However, findings of the learned trial Court have been reversed by the learned Lower Appellate Court. Facts :

2. Plaintiff-respondent No. 1 filed a Civil Suit No. 54T on 30-1-1979 for possession by specific performance of agreement to sell, dated 28-12-1974 (Ex. P1) against defendant-respondent No. 2 with a further direction to him and defendant-appellant to execute the sale deed. According to the assertion made by the plaintiff-respondent No. 1, defendant-respondent No. 2 was the owner of the suit land and he entered into an agreement to sell in writing for a total consideration of Rs. 50,000/- on 28-12-1974. It was alleged that the defendant-respondent No. 2 had received a sum of Rs. 10,000/- as earnest money at the time of execution of the agreement to sell and the date fixed for execution of the sale deed was 31-12-1975. Plaintiff-respondent No. 1 has claimed that he was always ready and willing to perform his part of the contract as he had adequate funds. He issued a telegram to defendant-respondent No. 2 on 27-12-1975, to reach Sub-Registrar s office on 30-12-1975. He asserted that he remained present before the Sub-Registrar on 30-12-1975, when he had sent another telegram stating that he was waiting there. Thereafter still another telegram was sent on 30-12-1975, intimating to the defendant-respondent No. 2 that he had failed to reach the office of the Sub-Registrar and requested him to execute the sale deed failing which the plaintiff-respondent No. 1 was to file a suit for specific performance. He further claimed that he had even then visited the office of Sub-Registrar on 31-12-1975, yet defendant-respondent No. 2 did not reach there. Thereafter, two legal notices were sent through his counsel (vide Notice No. 103, dated 1-1-1976 and Notice No. 213, dated 16/19-2-1976, under UPC), which remained un-replied. Plaintiff-respondent No. 1 claimed to have met defendant-respondent No. 2 with a request to execute the sale deed but in vain. He is stated to have sent two other legal notices No. 398, dated 4-5-1976, under Registered A.D. and No. 1044, dated 28-9-1976. It was alleged that the defendant-respondent No. 2 sold 4 bighas of that land to defendant-appellant illegally vide sale deed dated 11-7-1975, which has also been challenged because plaintiff-respondent No. 1 had already entered into an agreement to sell with the