TRIBHUVAN DAHIYA, J.

By this common judgment, the aforesaid two appeals shall be decided as both of them have been filed impugning the common judgment dated 15.01.2014 passed by the lower appellate Court.

2. These are plaintiff’s appeals in a suit for delivery of possession by way of specific performance of the agreement to sell dated 20.01.2003, for setting aside that part of the impugned decree which provides for refund of the earnest money.

3. The facts of the case in brief are, the appellant/plaintiff (hereinafter referred to as the 'plaintiff') filed a suit for delivery of possession by way of specific performance of an agreement to sell entered into with the respondents/defendants (hereinafter referred to as the 'defendants') dated 20.01.2003 for sale of a residential house measuring 32 sq.yards for a total sale consideration of Rs.4.5 lakh. Out of this consideration, Rs.2.5 lakh was paid as earnest money at the time of execution of the agreement, and an amount of Rs.50,000 was paid later towards the remaining sale consideration, vide an endorsement on the rear side of the sale agreement. The sale deed was agreed to be executed on or before 20.12.2003. When the defendants refused to execute the sale deed and deliver possession of the property/the house, the suit in question was filed.

4. Upon notice the defendants pleaded that they never entered into the agreement to sell with the plaintiff as they themselves were not the owners of the property at the time when the alleged agreement to sell dated 20.01.2003 was executed. Therefore, the agreement cannot be performed.

5. Upon completion of pleadings, the following issues were settled by the trial court:

1. Whether the plaintiff is entitled to specific performance of the agreement and injunction?OPP

2. Whether the plaintiff is guilty for concealment?OPD

3. Relief.

6. In the evidence led, the plaintiff examined himself as PW-1 and stated that after receiving the sale consideration, the defendants had handed over sale deed of the house to him. He also examined the marginal witness to the agreement to sell Kishori Lal as PW-2,who stated that both the parties were known to him and the agreement was executed in his presence. The original agreement was tendered as Ex.P1, apart from other documentary evidence. The defendants, on the other hand, examined defendant No.3 Hari Ram, who stated that they were three brothers and were co-sharers in the suit property, which devolved upon them through natural succession on death of their mother Mohiri Devi. He categorically denied the factum of execution of the agreement to sell. Babu Ram himself stepped into the witness box as DW-2 and denied execution of the agreement to sell. Amarjit Kumar, another witness who was examined by defendants as DW-3, averred that defendants No.1 and 2 had raised a loan to the tune of Rs.30,000 from the plaintiff and delivered title deed to him. The plaintiff had taken their signatures on blank papers. Although the amount was repaid, the plaintiff converted the said blank papers into a fake agreement to sell.

7. The trial Court while returning findings on Issue No.1 held that two of the defendants, i.e., Babu Ram and Rupa Ram/defendants No.1 and 2 had admitted their signatures on the agreement to sell (Ex.P1) though they averred that the same were obtained by the plaintiff on blank papers, and the third defendant, i.e., defendant No.3 Hari Ram denied his signatures on the ground that he did not know English and would sign only in Hindi. Therefore, the plaintiff was held to have discharged his onus regarding execution of the agreement to sell by the first and the second defendants only. Accordingly, the Issue was decided in favour of the plaintiff and against first and second defendants only, who were directed to perform their part of the contract by execution of the sale deed in terms of the agreement to sell dated 20.01.2003 to the extent of their share only, i.e., 1/3rd each. On Issue No.2, it was held that no materia