Agreement to Sell--Suit for specific performance based upon an unregistered agreement to sell shall not be dismissed for want of registration.

Mrs. Daya Chaudhary, J.: - Appellant-Jasbir Singh, who is one of the legal representatives of defendant-Ram Singh, has filed the present Regular Second Appeal to challenge the impugned judgment and decree dated 31.07.2012 passed by learned District Judge, Panipat, whereby, the judgment and decree dated 11.08.2011 passed by the trial Court has been reversed.

2. Briefly, the facts of the case, as made out in the appeal, are that respondent No.1 filed a suit for symbolic possession by way of specific performance on the basis of an agreement to sell dated 16.09.2002 regarding the land, in dispute. As per averments made in the plaint, defendants No.2 to 6 appointed defendant No.1 as their power of attorney vide documents dated 06.08.1998, 16.07.1998 and 07.08.2001. They entered into an agreement to sell dated 16.09.2002 with the plaintiff qua to suit land. Said suit was contested by the defendants and a joint written statement was filed by defendants No.2 to 6, including the present appellant. It was mentioned in the written statement that the plaintiff as well as defendant No.1 were real brothers and the alleged agreement dated 16.09.2002 was a result of fraud played upon the appellant and his other brothers/defendants No.2 to 6. It was also denied that defendants No.2 to 6 had ever obtained any sale consideration as alleged in the agreement to sell dated 16.09.2002. Defendants no.2 to 6 cancelled the General Power of Attorney executed in favour of defendant No.1 on 27.05.2003. Said agreement dated 16.09.2002 was fabricated by two brothers in collusion with each other. Suit filed by respondent No.1/plaintiff was decreed vide judgment/decree dated 11.08.2011.

3. Aggrieved by said judgment of trial Court, respondent No.1 filed an appeal before the learned District Judge, Panipat, which was allowed vide judgment and decree dated 31.07.2012.

4. Said judgment and decree passed by the lower Appellate Court has been challenged in the present Regular Second Appeal.

5. Learned counsel for the appellant submits that the lower Appellate Court has wrongly held that the agreement to sell was proved on record. As per case of the plaintiff, the agreement to sell was entered in the register of deed-writer and the evidence of deed-writer, who had written the agreement along with the record register was required to be produced and proved. Learned counsel also submits that the second witness to the agreement to sell was not produced as witness by the plaintiff to prove the agreement to sell. There are material contradictions and variations regarding payment of the sale consideration in the statements of PW-1 and PW-2. As per statement of PW1, an amount of Rs. 2 lacs was paid to Satpal on the date of execution of the agreement, whereas, an amount of Rs. 4 lacs was paid to Ajva and others prior to the execution of the agreement. Learned counsel also submits that PW-1 has further stated that Rs. 4 lacs was withdrawn from the bank, whereas, Rs. 2 lacs was obtained from the commission agent after the sale of tractor. There were no such pleadings in the plaint. Learned counsel also submits that there is no evidence regarding the withdrawal of money from the bank or borrowing the same from the commission agent. Even the amount, which was paid, has not been proved on record. PW-2 has stated in his statement that the entire amount was paid to Satpal, which shows that there was a total contradiction regarding making payment of sale consideration. Learned counsel also submits that the lower Appellate Court has failed to take into consideration that Karma and Satpal are both real brothers and Satpal after obtaining General Power of Attorney from defendants No.2 to 6 had played a fraud upon them in collusion with his brother Karma by forging the alleged agreement to sell. Said Satpal failed to appear before the trial Court. Neither any written statement was filed by him on his behalf nor he appeared as a witness. The alleged agreement to sell dated 16.09