JUDGMENT :

Pankaj Jain, J.

Defendants are in second appeal. For convenience, the parties hereinafter are referred to by their original position before the Court of First Instance i.e. the appellants as defendants and the respondent as plaintiff.

2. Plaintiff filed suit for possession by way of specific performance claiming that defendants agreed to sell the suit land in his favour vide agreement to sell dated 15.11.2005 @ Rs.1,04,000/- per Bigha. Rs.20,00,000/- was received as earnest money on the same date. The parties agreed to get the sale deed executed on or before 15.03.2006. Plaintiff claimed that he always remained ready and willing to perform his part and continues to do so, but the defendants having failed to perform their part, decree of possession by way of specific performance be granted in his favour.

3. Defendant No.1 died. He is being represented by his LRs i.e. defendants No.2 to 4. Defendant No.4 was proceeded ex parte. Written statement was filed on behalf of defendants No.2 and 3. Execution of agreement to sell, was denied. As per defendants No.2 and 3, agreement to sell dated 15.11.2005 was a forged, fictitious and fabricated document. It was claimed that Jangir Singh, defendant No.1 is owner in possession of 3/4th share out of the disputed land. Defendants No.2 and 3 and one Gurmail Singh sons of Jangir Singh were owners to the extent of 1/4th share. Gurmail Singh died bequeathing his property in favour of defendants No.2 and 3. Thus, defendants No.2 and 3 are now the owners of 1/4th share of the disputed land to the extent of 1/2 each. It was claimed that Jangir Singh was 90 years of age and was person of unsound mind. He was not in position to comprehend good or bad. The agreement to sell was neither thumb-marked by Jangir Singh nor was signed by any of the defendants. The suit filed by the plaintiff thus be dismissed.

4. The Court of the First Instance framed the following Issues:

"1. Whether defendants executed an agreement to sell dated 15.11.2005 in favour of plaintiff and received a sum of Rs.20 lacs as earnest money? OPP

2. Whether the agreement to sell dated 15.11.2005 is result of fraud, misrepresentation and is without consideration? OPD

3. Whether the plaintiff remained ready and willing and is still ready and willing to perform his part of the contract? OPP

4. Whether the suit is not maintainable in the present form? OPD

5. Whether the plaintiff is entitled to the decree of specific performance as prayed for? OPP.

6. Whether the plaintiff is entitled to the alternative relief of recovery of Rs.40 lacs, as prayed for ? OPP

7. Relief."

5. While answering Issues No.1, 2, 3, 5 and 6, the Court of the First Instance found that the plaintiff proved execution of agreement to sell in his favour by defendants No.1 to 3 by examining Anish Garg, Stamp Vendor as PW-3, Jasmer Singh attesting witness of agreement to sell as PW-1 and also proved payment of earnest money of Rs.20,00,000/-. The Trial Court further found that since 15.03.2006 i.e., the agreed date was declared as a public holiday, plaintiff vide Exhibit P-2 successfully proved his presence before Sub Registrar, Ahmedgarh on 16.03.2006 and thus was successful in proving his readiness and willingness.

6. Defendants in their defence although denied execution of agreement to sell and claimed that the same was result of fraud but failed to lead any evidence. Apart from denial, the evidence for consideration brought on record by the defendants was by examining DW4 Dr. Jagjiwan Singh, District Health Officer, Mansa, who claimed that he treated Jangir Singh, son of Nikka Singh, defendant No.1 for Anxiety Neurosis and Schizophrenia. The Trial Court after considering the evidence however found that the oral testimony of Dr. Jagjiwan Singh was not in sync with documentary evidence, Exhibits D-1 and D-2. Holding that the defendants have failed to prove their defence, Trial Court decreed the suit filed by the plaintiff granting decree of possession by way of specific per