Relinquishment under Section 12 of the Specific Relief Act, 1963 can be made at any stage of the suit or appeal, but a decree for specific performance is a discretionary relief that may be forfeited due to the efflux of time and the plaintiff's default.

1. Vide agreement to sell dated 23/03/1962, (Exhibit P-1) the defendant-respondent (hereinafter called the respondent) agreed to sell the suit property for a sum of Rs. 50,000 / - and obtained a sum of Rs. 15,200.00 as earnest money. It was stipulated in the agreement (Ex. P-1) that the sale deed was to be executed on or before 15/06/1962, and the balance of the sale price was to be paid before the Registrar at the time of the execution of the sale deed. It is, however, alleged that the respondent did not agree to execute the sale deed in spite of a registered notice dated 5/06/1962, (Ex. R-4) having been served upon him. Therefore, the plaintiff-appellant (hereinafter called the appellant) issued another notice (Ex. P-5) to the respondent and thereafter filed the present suit in which a decree for specific performance was sought in the alternative, the appellant claimed the return of Rs. 15,200.00 together with Rs. 4800/ - as damages, making a total Rs. 20,000/ - in all.

2. In answer to the plaint, various objections were taken by the respondent and a specific plea was raised that the Khasra numbers forming a part of the property were not the same as mentioned in the agreement Ex. P-1 and further that some of the Khasra numbers entered in that agreement had gone out of the ownership of the respondent and, as such, they could not be the subject-matter of sale at his instance. On the pleadings of the parties, the trial Court framed the following issues :-

1. Is the suit property the same regarding which agreement of sale took place between the parties? 2. Did the defendant receive Rs. 6000 / - at the time of the agreement? 3. Was the agreement executed under undue influence, if so its effect? 4. Is the agreement vague, unfair and unconscionable, if so its effect? 5. Was not the defendant in his sense when the agreement was executed; if so its effect? 6. Was the agreement made by mistake between the parties? 7. Is it necessary for the plaintiff to file plan of the houses in dispute, if so has a proper plan been filed? 8. Relief.

3. Under Issue No. 1 the trial Court concluded that 9 Khasra Nos. mentioned in para No. 7 of the plaint which were included therein, were not the property of the respondent at the time of the execution of agreement of sale. The total area of these Khasra numbers came to 46 kanals 3 marlas, whereas the property agreed to be sold vide agreement Ex. P-1 was 305 kanals 9 marlas of the agricultural land and 4 small houses measuring 1 kanal 8 marlas in area. The trial Court accordingly found that the area comprising 46 kanals 3 marlas which was roughly 1/7th share of 305 kanals 9 marlas of land did not belong to the respondent and, as such, could not be sold by him. However, the Court found that 1/7th share being a small portion of the property agreed to be sold, the appellant was entitled to a decree for specific performance on appropriate reduction of the sale price. On issue No. 2, the trial Court found that it was not possible to determine with accuracy as to the actual amount that had been paid towards earnest money. Issues Nos. 3, 4, 5, 6 and 7 were also decided against the respondent. Under Issue No. 8, the trial Court granted a decree for specific performance of the suit land and houses except the area of 46 kanals 3 marlas subject to the appellants paying Rs. 29,605 / - more to the respondent. Feeling dissatisfied with the same, the respondent filed an appeal before this Court and the same having been allowed, the present Letters Patent Appeal is before us.

4. The learned single Judge found that the respondent had no proprietary rights over the area of 46 kanals 3 marlas at the time of the execution of the agreement to sell "Ex. P-1 and, as such, was not competent to sell that particular portion. Reliance was placed by the learned single Judge on Sec. 12 of the Specific Relief Act, 1963 (hereinafter called the Act) to hold that if the appellant was to succeed in the suit for specific performan