The burden of proof lies on the party alleging incapacity or document forgery; failure to present evidence supports the other party's claims.

Judgment

Ms. Amarjot Bhatti, J.

The appellant/defendant – Mukesh Kumar has filed regular second appeal against impugned judgment and decree dated 14.02.2023 passed by learned Additional District Judge, Fazilka in civil appeal bearing CIS No.CA-62 of 2022 dated 01.07.2022 dismissing the appeal of the appellant/defendant by upholding the judgment and decree dated 06.04.2022 passed in Civil Suit No.423 of 2020 by the court of learned Civil Judge (Junior Division), Abohar vide which the suit filed by the respondents/plaintiffs was decreed by granting the relief of specific performance of agreement to sell dated 21.03.2017 Ex.PW3/A against the defendant as detailed therein.

2. As per the facts of the case, Anoop Kumar and Vishnu Dutt filed suit for specific performance of agreement to sell dated 21.03.2017 executed by Mukesh Kumar – defendant regarding sale of agricultural land measuring 54 kanals as detailed in the head note of the plaint as per Jamabandi for the year 2011-12 situated in the area of Village Rajanwali, Tehsil Abohar, District Fazilka in favour of plaintiffs at the rate of Rs. 6,23,000/- per acre out of which the defendant had already received Rs.35,00,000/- as earnest money from the plaintiffs and promised to execute the sale deed on or before 20.06.2019 as per the terms and conditions of agreement to sell as well as writing dated 16.06.2018 along with the suit for permanent injunction restraining the defendants from alienating the suit property in any manner to anybody except the plaintiffs and further restraining the defendant from interfering or dispossessing them from the suit property illegally and forcibly and in the alternative suit for recovery of earnest money and damages, total Rs.42,05,250/- with interest as detailed in the plaint.

3. The plaintiff submitted that the defendant being owner in possession of the suit property entered into an agreement to sell dated 21.03.2017 regarding 54 kanals of land as detailed in the head note of the plaint at the rate of Rs.6,23,000/- per acre. The defendant had received Rs.35,00,000/- towards earnest money and agreed to execute the sale deed regarding this property on or before 20.06.2018 after receipt of balance sale consideration. The agreement to sell was reduced into writing which was duly signed by both the parties in the presence of marginal witnesses. The possession of the land was handed over to the plaintiffs and since then the plaintiffs were cultivating the suit land. The plaintiffs requested the defendants to execute the sale deed on 20.06.2018 but with the consent of both the parties vide writing dated 16.06.2018 the date for execution of sale deed was mutually extended from 20.06.2018 to 19.06.2019. The said writing was scribed and duly signed by both the parties in the presence of witnesses and it was got attested from a Notary public. As per the terms of agreement ot sell dated 21.03.2017 and writing dated 16.06.2018, the plaintiffs came to the office of Sub Registrar, Abohar on 19.06.2019 along with balance sale consideration and other expenses and kept on waiting for the defendant but he did not turn up. The plaintiffs got their presence marked by way of affidavit duly attested by the Notary Public. Thereafter, the defendant was requested several times to execute the sale deed on receipt of balance sale consideration but he did not pay any heed to their request rather threatened to alienate the property at a higher rate. The plaintiffs were always ready and willing to perform their part of contract but it was defendant who committed breach of contract. In case the plaintiffs were not found to be entitled to the relief of possession by way o