Rakesh Kumar Jain, J (Oral):- This is an appeal by defendant no.2 against the judgment and decree of both the courts below whereby the suit of plaintiff seeking possession by way of specific performance of the contract of sale has been decreed.

2. The case of plaintiff (Tarlok Singh) is that defendant no.1 (Harbhajan Singh) is the owner in possession of the property in dispute (4 kanals 19 marlas) i.e. 1/4th share of Khewat No.115, Khatauni No. 146, Khasra No. 841/1. (4-0), 841/2 (3-3), 816/1 (8-0), 6566/6262/804 (2-7), 6567/6262/804 (2-7) situated in the area of Village Bara Pind, Tehsil) Phillaur.

3. It is averred by the plaintiff that defendant no. 1 entered into an agreement of sale on 26.4.1998 of the land measuring 4 kanals 19 marlas for a consideration of Rs.2, 47,000/-. The plaintiff had paid Rs.10,000/­ towards earnest money at the time of the execution of the agreement with the condition that the balance sale consideration shall be paid at the time of execution of sale deed before the Sub Registrar. The sale deed was to be executed and registered within 3 months from the date of sanction of the mutation in favour of defendant No.1 regarding the inheritance of Swaran Singh, deceased father of defendant No.1 and in case of default by defendant no.1, the plaintiff shall be entitled to get the possession of the land in question through the court by filing a suit for specific performance. Defendant No.1 obtained the jamabandi on 18.5.1998 and handed over to the plaintiff on the basis of which mutation No.7035 was sanctioned “regarding the land in dispute in favour of defendant no.1. After the receipt of the copy of the jamabandi the plaintiff asked him (defendant no.1) to execute the sale deed and had also issued registered AD letter/notice dated 18.05.1998 to him through his Advocate Sh. S.K. Goel and asked him to execute the sale deed on or before 18.8.1998. Since defendant no.1 did not give any reply, the plaintiff had to file a suit for injunction against him on 18.5.1998 itself as he came to know that defendant no.1 is alienating the suit land to some other person in order to wriggle out of the agreement. ‘ In the said suit, stay was granted. The plaintiff had also approached defendant no. 1 a week prior to 18.8.1998 alongwith marginal witnesses of the agreement and balance amount in cash but he refused to accept the same on the ground that he will receive the same on the date of execution and registration of the sale deed. The plaintiff appeared before the Sub Registrar on 18.8.1998 for execution of the sale deed as he was always ready and willing to perform his part of the contract. Defendant no.1 allegedly sold the land in dispute to defendant no.2 (appellant) vide sale deed dated 26.5.1998. It is alleged in the plaint that the sale deed has no effect on the rights of the plaintiff.

4. After notice, separate written statements were filed by defendants no.1. and 2. Defendant no.1 raised a preliminary objection in his written statement that plaintiff had no locus standi to file the suit, suit is not­ maintainable in the present form and is barred under order 2 rule 2 CPC, the plaintiff is stopped by his own act and conduct, suit is not properly valued. On merits, defendant no. 1 admitted that he had sold the land in suit measuring 4 kanals 19 marlas vide sale deed dated 26.5.1998 to defendant no.2 for a consideration of Rs.1, 85,000/-. It was alleged that he never agreed to sell the land in dispute to the plaintiff nor entered into any agreement dated 26.4.1998 and has thus not received Rs.10,000/- as earnest money. It was also alleged by defendant no.1 that even if it is proved that there is an agreement dated 26.4.1998 it does not bear his thumb impression and is thus a result of fraud and mis-representation. It was denied that mutation was ever sanctioned on 18.5.1998 or defendant no.1 ever obtained the fard jamabandi on 18.5.1998. It was denied that plaintiff ever approached defendant no.1 a week prior to