Mr. Amit Rawal, J.: (Oral) - The appellants-defendants are in Regular Second Appeal.

2. It would be apt to give few facts which are essential and necessary for adjudication of the present appeal. As per the case set out in the plaint, agreement to sell dated 15.02.1993 was entered into between the plaintiff and defendant Nos.1 and 2 in respect of land measuring 8 kanals out of total land measuring 24 kanals. It was stated that defendant Nos.1 and 2 mortgaged the land measuring 8 kanal of Killa No.17, Rectangle No.15 for a sum of Rs.30,000/- with Primary Agricultural Development Bank-defendant No.3. The total sale consideration for aforementioned land was fixed as Rs.70,000/- and earnest money of Rs.24,000/- stated to have been paid. It was further averred that on 27.02.1993, defendant No.2-Harminder Singh received a sum of Rs.5,000/- and made an endorsement in this regard and on 28.09.1993 both the defendants received earnest money of Rs.8,000/- which fact was endorsed on the agreement to sell. The stipulated date for registration and execution of the sale deed was fixed as 14.02.1994 at the expense of the plaintiff. It was further averred that possession of Killa No.17 of Rectangle No.15 out of suit property was also delivered to the plaintiff. The plaintiff had been ready and willing to perform his part of the agreement but, the defendants did not execute and register the sale deed which necessitated him to send legal notice. Ultimately, suit was filed on 22.02.1994.

3. The appellants-defendants in the written statement had taken numerous preliminary objections vis-a-vis maintainability, cause of action, locus standi, suit being barred by provision of Section 10 CPC and on merits stated that mortgage money has since been paid to the defendant No.3.

4. It was stated that agreement to sell was denied on the premise that plaintiff is money lender and defendants approached him for loan which was advanced to them along with interest at the rate of 18% p.a.. In this process, signature of defendants on some papers alleging to be pronote had been obtained. However, Rs.5,000/- was paid back to the plaintiff but, the signed papers were not given and which were converted into execution of agreement to sell in respect of aforementioned land.

5. The respondent-plaintiff in order to prove the execution of agreement to sell, much less, payment of the earnest money and subsequent premium, examined PW1 Kulwinder Singh, PW3 Maghar Singh (attesting witnesses to the agreement to sell), PW3 (renumbered) Kamlesh Kumar, PW5 Parshotam Dass and he himself appeared as PW2. Legal notice dated 31.01.1994 Ex.P1, Agreement to sell Ex.P2, endorsements Ex.P2/A and Ex.P2/B and photocopy of the entry bearing No.174 entered into the register of Deed Writer as Ex.PW4/1 and photocopy of entry pertaining to issuance of register Ex.PW5/1, had been proved on record.

6. The appellants-defendants appeared as DW1 and DW2 and examined Surjit Singh (witness to the endorsements) and Pritam Singh as DW3 and DW4 and vide order dated 19.05.2007, tendered into evidence certified copies of judgment and decree dated 26.08.2000 as Ex.DX and Ex.DY and suit bearing No.36 of 04.02.1998 titled as Mann Singh Vs. Inderjit Singh, alleged to have been filed claiming the specific performance of agreement to sell dated 14.02.1991 allegedly executed by defendants in favour of Mann Singh.

7. The trial Court on the basis of the oral and documentary evidence gave a finding on issue No.1 in favour of the plaintiff whereas vis-a-vis finding on issue qua readiness and willingness also rendered in favour of the plaintiff, but declined the discretionary relief of specific performance on the premise that plaintiff did not challenge the judgment and decree dated 26.08.2000 and ordered for refund of the earnest money for Rs.37,000/- along with interest at the rate of 12% till filing of the suit with future interest @ 6% p.a.

8. Aggrieved against the aforementioned judgment and decree, both