Mere escalation of price does not constitute hardship to the vendor, and the conduct of the parties and the terms of the agreement are crucial in determining entitlement to specific performance.

JUDGMENT

Deepak Gupta, J. - Defendant of the case is in this appeal against the judgment of reversal qua the relief for specific performance. In order to avoid confusion, parties shall be referred as per their status before learned trial Court.

2. (a) Plaintiff- Rajbir Singh (now respondent) filed the suit bearing registration No.CS/54408/2013 titled 'Rajbir Singh Vs. Jitender' seeking decree for possession by way of specific performance of the registered agreement to sell dated 16.10.2006 with regard to suit property.

(b) It was pleaded that defendant being co-owner to the extent of 1009/7382 share in the total land measuring 369 kanal 2 Marla (detailed in para No.1 of the plaint) situated in Village Molawas, Hadbast No.183, District Rewari, agreed to sell area measuring 10 kanal 9 Marla i.e. 209/7382 share for total consideration of Rs. 8 lacs vide registered agreement dated 16.10.2006. Defendant received Rs. 7,99,500/- in the presence of witnesses and put signatures on every page of the agreement, which was presented before the Sub-Registrar, Dharuhera, where defendant affixed his thumb im-pression on the first page of the agreement to sell. It was agreed amongst the parties that defendant will seek partition of the joint property from other co-sharers and after the partition, will serve a legal notice upon the plaintiff within two months by registered post for execution and registration of the sale deed.

(c) Plaintiff pleaded that defendant failed to get the sale deed executed in his (plaintiff's) favour. During entire period, defendant kept on assuring the plaintiff that he would get the partition proceedings completed and then shall execute the sale deed. Though, it was mentioned in the agreement that possession of killa No.9 (8-0) and 12/1(2-9) of Rect. No.11 has been delivered but actual possession has not been delivered to the plaintiff till date. As defendant failed to initiate the partition proceedings despite long lapse of time, a legal notice dated 04.09.2012 was served upon the defendant, which was replied by him but he did not execute the sale deed. On 05.10.2012, plaintiff remained present in the Office of Registrar to get the sale deed executed and registered in his favour along with balance sale consideration and necessary amount to meet the other expenses but defendant did not turn up. Plaintiff submitted that he has always been ready and willing to perform his part of contract but defendant failed to do so.

(d) With these averments, plaintiff prayed for decree for specific perfor- mance in respect of agreement to sell dated 16.10.2006 in respect of the suit property.

3. Defendant in his written statement denied execution of any agree- ment. He alleged agreement dated 16.10.2006 relied by plaintiff to be forged and fabricated. Defendant further denied receipt of any earnest money. According to him, plaintiff was in the need of money and had approached him (defendant) for that purpose and received an amount of Rs. 21 lacs in cash on 16.10.2006 regarding which a writing was executed by the plaintiff in favour of defendant but original writing/affidavit was taken away by the plaintiff from the defendant by playing fraud. It was submitted further that as no agreement was executed, so there was no question of making appearance before the Sub-Registrar, Dharuhera on 16.10.2006. Defendant denied to have affixed his thumb impression over the leaf of the first page of the agreement. He denied having ever agreed to seek partition of his land or to serve notice to the plaintiff two months thereafter. As per defendant, he being co-sharer in possession to the extent of 1009/7382 share out of total land measuring 369 kanal 2 Marla, so he is not in possession over specific killa numbers and so, possession of no killa numbers was handed over to the plaintiff. Receipt of the legal notice dated 04.09.2012 is admitted but it is submitted that it was duly replied, wherein he (defendant) had specifically pleaded that plaintiff had tak