The main legal point established in the judgment is the requirement for the plaintiff to prove the execution of the agreement deed in a suit for specific performance.

( 1 ) THIS second appeal has been preferred against the judgment and decree dated 25. 8. 1992. passed by VIIth Additional District Judge. Azamgarh in Civil Appeal No. 329 of 1986 allowing the appeal and setting aside the judgment and decree dated 31. 5. 1986 passed by Munsif City. Azamgarh in Original Suit No. 310 of 1979 decreeing the suit for specific performance.

( 2 ) MADHO Prasad, appellant (hereinafter called the plaintiff), filed Suit No. 310 of 1979 against ram Chandra and Smt. Bibbo Devi, respondents (hereinafter called the defendants), for specific performance of contract and in the alternative for refund of Rs. 6,000. the earnest money and for damages amounting to Rs. 1. 000 mainly on the ground that he was tenant In house in suit on monthly rental of Rs. 5 for last 20 years. The defendants were in need of money for marriage of their daughter and. therefore, they agreed to sell the house in suit in favour of. plaintiff for Rs. 9. 000 and executed an agreement to sell on 17. 3. 1976 after receiving a sum of Rs. 6,000 as earnest money. The defendants did not execute sale deed despite of service of notice dated 31. 7. 1978 and, therefore, he filed the suit.

( 3 ) THE defendants contested the suit on the ground that the plaintiff was their tenant in a portion of house in suit on monthly rental of Rs. 40 and S. C. C. Suit No. 57 of 1978 for his ejectment and for recovery of rent was filed against him which was pending. The defendants never agreed to sell the house in suit in favour of plaintiff, nor executed any agreement to sell. They had not signed any such document. The price of the house Jn suit was Rs. 40. 000 and there was no occasion for the plaintiff to sell the same only for Rs. 9. 000.

( 4 ) THE learned Munsif decided the Original Suit No. 310 of 1979 and S. C. C. Suit No. 57 of 1978 by a common judgment. He framed necessary issues and on considering the evidence of the parties, held that the defendants agreed to sell the house in suit in favour of plaintiff for a consideration of Rs. 9. 000 and in lieu of it, the defendant No. 1 executed agreement to sell dated 17. 3. 1976, after receiving a sum of Rs. 6,000 as earnest money. He further held that after execution of agreement deed, there was no necessity for the plaintiff to pay rent to the defendants. The landlord also failed to prove that rate of rent was Rs. 40 per month. Therefore, the plaintiff/tenant was not defaulter In payment of rent. With these findings, he decreed the suit of plaintiff for specific performance and dismissed the suit filed by defendants for ejectment and arrears of rent and damages.

( 5 ) AGGRIEVED with the above Judgment and decree the defendants filed Civil Appeal No. 329 of 1986 against the judgment and decree of Suit No. 310 of 1979. The lower appellate court, on reappraisal of the evidence of the parties, held that the finding of the learned Munsif that the agreement of sale was executed by the defendant No. 1 was not correct and the evidence on record proved that defendant had no need of money In March. 1976, which he could get only after disposal of the disputed property. Admittedly, the plaintiff was tenant in the disputed house. He fell in arrears of rent and a notice of demand and ejectment was served on him and a suit for ejectment and recovery of rent was also filed. The plaintiff in order to get rid of S. C. C. suit, prepared a fictitious agreement of sale and filed the suit. The agreement to sell was a result of fraud and on the basis of it, the plaintiff was not entitled to relief claimed for. The findings of the learned Munsif on question of fact was wholly erroneous and could not be maintained. He further held that since agreement to sell was fictitious and sham document, no other questions required to be investigated in the appeal. With these findings the lower appellate court allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit of the plaintiff for specif