JUDGMENT :

PANKAJ JAIN, J.

1. Plaintiff is in second appeal aggrieved of concurrent judgment and decree passed by both the Courts below.

2. Plaintiff filed suit seeking decree of specific performance of agreement to sell dated 16.10.2008. As per plaintiff, defendant No.1 agreed to sell land measuring 06 kanal 12 marlas as detailed out in the headnote of the plaint (hereinafter referred to as the suit land) for a total sale consideration of Rs.1,01,70,000/- by way of written agreement to sell dated 16.10.2008. A sum of Rs.45,70,000/- was paid to defendant No.1 at the time of execution of agreement to sell. Parties agreed to get the sale deed executed on or before 15.12.2008. As per the averments made in the plaint, defendant No.1 approached the plaintiff on 20.11.2008 and raised demand of Rs.5 lakhs. Plaintiff paid the same. Writing to the said effect was made on the original receipt dated 16.10.2008. Accordingly, the plaintiff by 20.11.2008 paid an amount of Rs.50,70,000/- to defendant No.1 towards sale consideration.

3. Plaintiff claims to have remained present before the Office of Sub Registrar, Sohna on 15.12.2008 for execution of sale deed along with the stamp papers and a demand draft of Rs.10 lakhs dated 13.12.2008 and the remaining sale consideration in cash. Defendant No.1 remained absent and failed to perform his part. Plaintiff claims to have got her presence marked before the Office of Sub Registrar.

4. She further pleads that she called upon defendant No.1 by way of legal notice dated 16.12.2008 to come present before the Office of Sub Registrar, Sohna on 05.01.2009 and to execute sale deed in her favour. Plaintiff apprehending that defendant No.1 was contemplating to alienate the suit land, filed suit seeking permanent injunction restraining defendant No.1 from alienating the suit property. Defendant No.1 appeared before the Court in the suit for permanent injunction and admitted execution of agreement to sell in favour of plaintiff and receipt of Rs.50,70,000/-.

5. 05.01.2009 was declared as a public holiday. On 06.01.2009, plaintiff remained present before the Sub Registrar to get the sale deed executed. She possessed bank drafts of Rs.51 lakhs for paying the balance sale consideration. The sale deed was drafted with the consent of defendant No.1. She paid a stamp fee of Rs.1,91,100/- on the asking of Sub Registrar, Sohna. Instead of signing the sale deed, defendant No.1 opted to turn around. He left the Office of Sub Registrar, Sohna without executing the sale deed.

6. Plaintiff again served legal notice dated 10.01.2009 requesting defendant No.1 to execute the sale deed. Plaintiff claims to have again appeared before the Sub Registrar on 19.01.2009. After defendant No.1 failed to execute the sale deed in favour of plaintiff, plaintiff instituted the present suit alleging that defendant No.1 in complete disregard to the agreement executed in favour of the plaintiff acted in collusion with defendant No.2 and executed sale deed dated 28.10.2010 qua the suit land in favour of defendant No.2. Plaintiff thus, claims that the sale deed is illegal and is act of result of collusion between defendants. She pleads of having remained ready and willing to perform her part of contract continuously.

7. Defendants contested the suit. Defendant No.1 in his written statement, has admitted the execution of agreement to sell and receipt of an amount of Rs.50,70,000/- from the plaintiff. He, however questions the readiness and willingness of the plaintiff. As per defendant No.1, plaintiff entered into an agreement to sell dated 16.10.2008 intending to book profit. She had no intention of purchasing the land. Plaintiff lacked capacity to pay the balance sale consideration. As per defendant No.1, he remained present before the Office of Sub registrar on the appointed date from 9 a.m. to 5 p.m., but it is the plaintiff who failed to turn up to perform her part. Defendant No.1 pleads that after the plaintiff failed to perform her part on the