Hon’ble Prakash Krishna, J.—This is defendant’s appeal under Section 96 of C.P.C. against the judgment and decree dated 19th of August, 1977 passed by the First Additional District Judge, Shahjahanpur in O.S. No. 19 of 1976 whereby it decreed the suit for specific performance of an agreement to sell.

2. O.S. No. 19 of 1976 was instituted by the plaintiff respondents on the pleas inter alia that the plaintiff agreed to sell four plot Nos. 356-A, 312, 356-B and 366 total area admeasuring 7.59 acres for a sum of Rs. 23,000/- situate in village Fatehpur Bujurg, Pergana and Tehsil Tilhar, District Shajahanpur. A registered sale agreement dated 28th of June, 1974 was arrived at between the parties and a sum of Rs. 5,000/- was given to the defendant at the time of execution of the agreement, Rs. 2,000/- at the time of the registration of the agreement and it was agreed upon that the balance amounting to Rs. 18,500/- would be payable at the time of the registration of the sale-deed. January 10, 1975 was the date fixed for the execution of the sale-deed. It so happened that the defendant could not obtain Bhumidhari Sanad in respect of these plots and therefore another registered agreement dated 20th of December, 1974 was executed and the period for execution of the sale-deed was extended up to 10th of January, 1976. The defendant having failed to execute the sale-deed in spite of notice dated 27.12.1973 as also in pursuance of oral requests, suit for specific performance of contract to sell dated 20th of December, 1974 was filed and in the alternative a relief for refund of Rs. 4,500/- was claimed.

3. The suit was contested mainly on the pleas that the plaintiff and defendant were Bataidar and a dispute having arisen in between the parties with respect to the distribution of the crop, it was settled between the parties due to intervention of some reputed persons and said settlement was reduced in writing on 2nd of February, 1976 whereby and whereunder the defendant paid a sum of Rs. 10,000 to the plaintiff with the clear stipulation and understanding that the plaintiff relinquishes all his rights under the aforesaid agreement. The sum of Rs. 10,000/- given by the defendant includes the return of advance money amounting to Rs. 4,500/-, Rs. 1,200/- towards pronote executed by the defendant and Rs. 4,300/- towards the damages paid by the defendant to the plaintiff.

4. On the pleadings of the parties the trial Court struck the following issues :

(1) Whether the plaintiff entered into an agreement relinquishing his rights under the agreement?

(2) Whether the agreement in favour of the plaintiff was obtained by fraud?

(3) Whether the plaintiff was always ready and willing to get sale-deed executed?

(4) Whether the plaintiff paid Rs. 4,500/- to the defendant as alleged?

(5) Relief.

5. The plaintiff examined himself in respect of his case as PW/1 and the defendant examined himself as DW/1. He also examined one Lt. Col. M.K. Shahi as DW/2 and Chhotey Lal DW/3 in support of his case with regard to the payment of Rs. 10,000/- to the plaintiff and the cancellation of the registered agreement in question. The trial Judge decided the issues No. 1 and 3 together. The trial Judge has found that the plaintiff did not enter into an agreement relinquishing his right under the agreement in question. The agreement in question was not obtained by fraud, as pleaded by the defendant and the plaintiff was always ready and willing to get the sale-deed executed. The finding with regard to the payment of earnest money amounting to Rs. 4,500/- was also recorded in favour of the plaintiff and the suit was decreed.

6. Shri Manoj Mishra, the learned Counsel appearing for the defendant-appellant submitted that the Court below has committed illegality in not accepting the case of the defendant-appellant that the earlier registered agreement entered into in between the parties stands cancelled in view of Exhibits A1 and A2 and Section 63 of the Contract Act. Exhibit A1 is