JUDGMENT :

Amarinder Singh Grewal, J. (Oral)

The defendant is the appellant before this Court challenging the judgment and decree dated 28.03.1989 passed by the 1st Appellate Court vide which the appeal preferred by respondent-plaintiff against the judgment and decree dated 19.02.1987 passed by the learned trial Court, whereby the suit for possession filed by the respondent-plaintiff was dismissed, has been allowed and the decree for possession of the land in dispute by specific performance of the agreement to sell dated 28.07.1981 was granted in favour of the respondent-plaintiff.

2. For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.

3. Succinctly, the facts of the case are that the land in dispute measuring 7 Kanals 9 Marlas, was admittedly owned and possessed by the defendant. On 28.07.1981, the defendant entered into an agreement to sell the said land to the plaintiff at the rate of Rs.37,500/- per killa, out of which Rs.6,000/- was paid as earnest money, and it was agreed that the balance consideration would be paid before the Sub-Registrar on 15.09.1981 at the time of execution and registration of the sale deed. Possession of the suit land was also delivered to the plaintiff as part performance of the contract, and he continued to remain in actual physical possession. On 15.09.1981, plaintiff appeared before the Sub-Registrar, Shahkot, and recorded his presence by moving an application, whereas the defendant failed to turn up and thereby committed breach of the contract, leading to institution of the present suit.

4. Upon notice of the suit, defendant appeared and contested the claim by filing a written statement. While admitting the execution of the agreement dated 28.07.1981 and the receipt of Rs.6,000/- as earnest money, the defendant specifically denied that the plaintiff had always been ready and willing to perform his part of the contract. It was asserted that the plaintiff failed to appear before the Sub-Registrar on the stipulated date, whereas the defendant had duly presented himself in the office of the Sub-Registrar on 14.09.1981 as well as on 15.09.1981 and had even sworn an affidavit before the Oath Commissioner, Nakodar, in this regard. All other averments of the plaint were specifically denied and dismissal of the suit was prayed for.

5. On the basis of pleadings, learned trial Court had framed as many as seven issues including relief. On appreciation of oral as well as documentary evidence produced before it, the learned trial Court dismissed the suit of the respondent whereas the appeal preferred by the respondent-plaintiff was allowed by the learned 1st Appellate Court. Hence, the defendant filed the present regular second appeal.

6. Learned counsel for the appellant-defendant, inter alia, contends that a bare perusal of the agreement to sell dated 28.07.1981 reveals that the second page of the said agreement was subsequently inserted, as it neither bears the signatures of the parties nor of the attesting witnesses, and the learned trial Court rightly noticed that the alleged clause regarding sanction of mutation was never proved by any independent evidence. Further, it is clear from the record, and even from the respondent-plaintiff's own pleadings, that both parties had treated 15.09.1981 as the date fixed for execution of the sale deed, thereby making time the essence of the contract. Furthermore, the trial Court correctly held that the respondent-plaintiff was not ready and willing to perform his part of the contract, whereas the defendant had always been ready and willing, yet the 1st Appellate Court erroneously reversed this finding on grounds neither pleaded nor proved. Lastly, undue emphasis was laid by the appellate Court on the filing of an injunction suit immediately after the stipulated date, overlooking that the same was only a device adopted by the plaintiff to gain time, as he had failed to arrange the sale consideration, besides the fa