JUDGMENT :

Nidhi Gupta, J.

Present Second Appeal has been filed by defendant No.1 against the concurrent judgments and decrees of the learned Courts below, whereby suit filed by the plaintiff/respondent No.1 herein seeking possession by way of specific performance of Sale Agreement dated 02.03.2006 and subsequent Sale Agreement dated 02.03.2009 regarding the suit land, or in the alternative, for recovery of Rs.10 lacs being Rs.5 lacs as earnest money and Rs.5 lacs as stipulated damages with 12 1/2% interest; has been partly decreed with costs by both the Courts below for specific performance of Agreement directing the appellant/defendant No.1 to execute the Sale Deed of land measuring 11K 15M after receiving balance sale consideration amount.

2. Brief facts of the case are that the plaintiff had filed instant suit pleading that the suit land measuring 51K 6M situated at village Dargah Heri is recorded in the joint ownership of the defendants. The land measuring 41K 12M situated at village Kurala Kalan,Tehsil Dasuya is also recorded in the joint ownership of the defendants. It was pleaded that it was conveyed by the appellant to the plaintiff that as per the oral family settlement, land measuring 27K 10M of village Dargah Heri and Kurala Kalan fell to share of defendant No.1. Defendant No.1 had executed Sale Agreement dated 02.03.2006 in favour of the plaintiff vide which he agreed to sell his said land measuring 27K 10M to the plaintiff for a total sale consideration of Rs.30 lacs, out of which Rs.5 lacs was received as earnest money. The target date for execution of Sale Deed was set for 28.02.2009. However, the said date of 28.02.2009 being a Saturday, plaintiff had duly gone to the office of Sub Registrar Tanda on 27.02.2009 for getting the Sale Deed executed and registered but the appellant did not turn up. Instead, the appellant had executed a fresh Sale Agreement dated 02.03.2009 in favour of the plaintiff wherein date of execution of Sale Deed was extended upto 02.03.2010. Again the plaintiff remained present in the office of Sub Registrar Tanda on 02.03.2010. However, again defendant No.1 did not turn up. Accordingly, plaintiff issued legal notice dated 12.03.2010 to defendant No.1 requesting him to get the Sale Deed executed and registered; and in the alternative defendant No.1 was bound to pay Rs.10 lacs being Rs.5 lacs as earnest money and Rs.5 lacs as stipulated damages to the plaintiff alongwith 12% interest on it. However, defendant No.1 had refused to admit the claim of the plaintiff. Accordingly, plaintiff filed present suit on 25.08.2011.

3. Upon notice, defendant No.1 had put in appearance and resisted the suit by filing written statement on various grounds. In his written statement, defendant No.1 had admitted the Agreement to Sell dated 02.03.2006 in respect of suit land measuring 27K 10M for total sale consideration of Rs.30 lacs. However, it was alleged that plaintiff had paid only Rs.2 lacs as earnest money, even though amount of Rs.5 lacs was mentioned to have been paid in the Agreement. It was alleged that plaintiff had to pay the remaining amount of Rs.3 lacs at the time of taking possession of the land. As the plaintiff did not pay the remaining amount of Rs.3 lacs, possession was not delivered to the plaintiff. Even partition to be effected between defendant No.1 and his brothers for which defendant No.1 had to file application for partition before the Tehsildar, was still pending in the Revenue Court. As such, Mutation was not sanctioned in favour of defendant No.1 on the target date of 28.02.2009 on the basis of pending family partition, and therefore, Sale Deed could not be executed. It was further averred that defendant No.1 had got the affidavit attested on 02.03.2010 through the Executive Magistrate, Tanda and in actual fact, it was the plaintiff who was never ready and willing to perform the Agreement. In fact, it was defendant No.1 who had got legal notice served upon the plaintiff. Defendant No