JUDGMENT :

PANKAJ JAIN, J. 

1. Plaintiff is in appeal, aggrieved of judgement and decree passed by the Lower Appellate Court whereby judgement and decree passed by the Court of First Instance has been reversed and the suit filed by the plaintiff has been ordered to be dismissed.

2. Plaintiff filed suit, seeking decree of specific performance of agreement to sell dated 29.06.1987. As per plaintiff, defendant who was owner in possession of suit land (ad-measuring 12 Kanals as detailed in the plaint) executed written agreement to sell in his favour agreeing to sell the suit land for total sale consideration of Rs.40,000. Earnest money of Rs.20,000 was paid. Parties agreed to get the sale deed executed on or before 15.06.1988. The land was lying mortgaged with Land Development Bank Firozepur, Jhirka. Defendant agreed to get the land redeemed on or before 15.06.1988. As per plaintiff, defendant delivered possession of land to him on the date of execution of agreement to sell. Plaintiff claims to have appeared before the Sub- Registrar on the appointed date of 15.06.1988. As per him, due to election duty, officials were not present in the office on the said date. Plaintiff thereafter appeared before the Sub-Registrar on 18.06.1988, along with balance sale consideration. Defendant failed to appear. Plaintiff got his presence marked by way of affidavit. Plaintiff instituted the present suit on 20.07.1989, accusing defendant no. 1 of having sold land in dispute in favour of defendant No.2 by way of registered sale dated 17.06.1989 in violation of the terms of agreement to sell executed in his favour. As per plaintiff, he always remained ready and willing to perform his part of contract. Defendants having acted in violation of the terms of the contract, plaintiff claims decree of specific performance in his favour.

3. Defendants filed joint written statement. Defendant No.1 denied execution of agreement to sell in favour of plaintiff. He denied of having received earnest money of Rs.20,000 and denied delivery of possession of the suit property to the plaintiff. Defendant No.2 claimed to be a bona fide purchaser of the land.

4. Suit filed by the plaintiff was put to trial by the Court of First Instance, on following issues:-

“1. Whether the defendant No.1 executed an agreement dated 29-6-87 for the sale of the suit land in favour of the plaintiffs? OPP

2. Whether the plaintiffs have always been ready and willing to perform their part of the contract? OPP.

3. If issue No.1 and 2 are proved in the affirmative, whether the plaintiffs are entitled to specific performance of the con tract. Is so, on what terms? OPP

4. Whether defendant No.2 is bonafide purchaser of the suit land for consideration and without notice as alleged. If so, to what effect? OPD-

5. Whether suit for specific performance is not maintainable without seeking the relief of possession as alleged in para No.3 of the preliminary objections of written statement? OPD

6. Relief.”

5. Plaintiff in order to prove his case, examined PW1 Motilal Gupta the scribe of agreement to sell, Somnath handwriting expert as PW3 and appeared himself as PW4.

6. Defendants in support of their case, examined Sammi Khan DW1, Chaman Parkash DW2. Both of them are attesting witnesses of agreement to sell propounded by the plaintiff. Sulaiman as DW3 and Deen Mohd son of defendant no.2 the subsequent purchaser as DW4.

7. Returning findings and issue No. 1 to 3, the Court of First Instance found that the plaintiff successfully approved execution of agreement to sell dated 29.06.1987 Ex P1. Plaintiff proved document Ex.PW4/1 which shows that he appeared before the office of Sub- Registrar Ferozepur Jhirka on 15.061988. Since nobody was present in the office of Sub-Registrar, due to election duty, he appeared before Sub-Registrar on 18.06.1988. The same is evident from the endorsement made on application Ex.PW4/3. The Trial Court accordingly held that the plaintiff successfully proved execution of agreement to sell and