Mr. A.N. Jindal, J.: - Trial court vide judgment dated 24.01.2008 partly decreed the suit of the plaintiff/appellant (herein referred as the plaintiff) for for recovery of Rs.1,70,000/-. However, it declined the relief of specific performance.

2. On appeal by the plaintiff/appellant (herein referred as the plaintiff), District Judge, Kurukhsetra vide his judgment dated 26.03.2010 dismissed the same. Still dissatisfied the plaintiff has come up in regular second appeal for seeking the relief of specific performance.

3. Defendant No.1 being the owner of 16 kanals i.e. 2560/25560th share out of total land measuring 159 kanals 15 marlas comprised in Khewat No.14/1 Khatauni No.43-Min, as fully detailed in the heading of the plaint situated at village Khera, Tehsil Thanesar, District Kurukshetra had mortgaged his land for a sum of Rs.40,000/- in favour of defendant No.3 on 17.3.1994 by executing registered mortgage deed. Again on 14.3.1996 he entered into an agreement of sale with him for a total consideration of Rs.2,80,000/- out of which he paid a sum of Rs.85,000/- as earnest money on 28.11.1996 and sale deed was to be executed on or before 5.3.1997 after receiving the balance sale consideration by defendant No.1. It was also agreed that if defendant No.1 failed to perform his part of the contract within the stipulated period then the plaintiff would be at liberty to get the sale deed executed and registered through the court. In the event of failure of defendant No.1 to perform his part of the contract he was liable to pay double the amount of the earnest money and if the plaintiff fails to perform his part of the contract then his earnest money was to be forfeited. The plaintiff further pleaded that defendant No.1 instead of executing the sale deed in his favour executed the sale deed in favour of defendant No.2 on 7.8.1997. Thus, he while filing suit for specific performance, also challenged the sale deed executed by defendant No.1 in favour of defendant No.2.

4. Defendant No.1 in his written statement has admitted that the suit land was mortgaged with defendant No.3 for a sum of Rs.40,000/- vide registered mortgage deed dated 17.3.1994. He has also admitted the execution of the agreement to sell dated 14.3.1996 by him in favour of the plaintiff in the presence of the witnesses and also added that he could not perform his part of agreement due to unavoidable circumstances. He could not appear before the Sub Registrar on 5.3.1997 due to his family problem. Thus, he has prayed for decreeing the suit in favour of the plaintiff.

5. Defendant No.2, in her separate written statement, has pleaded that the suit is false, frivolous and not sustainable; the plaintiff is estopped by his own act and conduct from filing the suit because he was having knowledge of the execution of the agreement to sell dated 14.3.1996 as well as sale deeds dated 7.8.1997 and 11.12.1997 in her favour by defendant No.1 from the very beginning. The plaintiff has concealed the material facts from the Court, therefore, he is not entitled to the discretionary relief of specific performance. The claim of the plaintiff is not based on bona fides; the suit is bad for non-joinder and mis-joinder of parties. She is a bona fide purchaser for valuable consideration and without any knowledge of the alleged agreement to sell dated 14.3.1996. The defendant No.1 was the owner in possession of the suit land and after the purchase, she is recorded owner in possession thereof. The sale deeds dated 7.8.1997 and 11.12.1997 executed in her favour are quite legal, valid and binding on the defendant no.1. After the purchase, the mutation has also been sanctioned in her favour. While denying other allegations, she prayed for dismissal of the suit.

6. Defendant No.3 while adding to the pleas as set up by defendant No.2, has further stated that the plaintiff has no cause of action or locus standi to maintain the suit and the suit is barred by limitation. The alleged agreement