Hon’ble Pankaj Mithal, J.—I have heard Sri M.C. Singh, learned Counsel on behalf of the defendant appellant and Sri Anubhav Trivedi and Sri Vishal Khandelwal holding brief of Sri Prakash Chandra for the plaintiff-respondents.

2. The appeal arises from a suit for specific performance of the agreement which has been decreed by the Court of first instance and the decree so passed has been upheld in appeal by the lower appellate Court. Thus, the decree of specific performance so passed by the Courts below has been assailed in the present appeal by the defendant-appellant.

3. It is said that the defendant appellant Ikram had executed a registered agreement to sale dated 14.6.1990 to transfer his land being plot No. 205 area 2 Bigha, 2 Biswa, 12 biswansi situate in village Govindpur of district Bulandshahr for a total sale consideration of Rs. 75,000/- out of which he had received a sum of Rs. 70,000/- in advance and balance Rs. 5,000/- was payable at the time of sale. When the sale deed was not executed despite notice and presence of the plaintiff respondent before the Sub-Registrar as agreed upon, the plaintiff respondent instituted the present suit on 23.11.1993 stating that he was always ready and willing to perform his part of the contract and is still ready to get the sale deed executed. The suit was contested by the defendant appellant by filing written statement alleging that no such agreement dated 14.6.1990 was executed by him. Such agreement, if any, is a fraudulent document. The defendant appellant in the year 1989 wanted to purchase a buffalow, therefore, he borrowed Rs. 5,000/- from the father of the plaintiff-respondent Mohd. Safi and to protect the said land transaction registered agreement to sell this very land was executed by him on 28.6.1989. Later on, when he had repaid the loan amount with interest in full, in order to get the aforesaid agreement to sell cancelled he had attended the office of the Sub-Registrar and it appears that in the garb of getting the cancellation deed executed, the agreement in dispute dated 14.6.1990 was fraudulently got executed. The agreement to sell was in violation of Section 168-A of the UPZA & LR Act and therefore no decree on its basis was liable to be passed.

4. On the pleadings of the parties following issues were framed :

¼1½ D;k Áfroknh us oknhx.k ds gd esa vius Hkwfe la[;k 205 jdcbZ 2&2&12 fLFkr xzke uaxyk xksfoUniqj ijxuk fldUnzkckn ftyk cqyUnkgj ds vady 75000 :i;s esa fnukad 14-6-1990 dks foØ; djus gsrq jftLVªh bdjkjukek rgjhj o rdehy djds vadu 70]000@& :i;s c;kuk ÁkIr fd;k\

¼2½ D;k oknhx.k fookfnr bdjkjukesa ds vuqlkj cSukek djkus dks lnSo rS;kj] bPNqd o rRij jgs gS\

¼3½ D;k fookfnr bdjkjukek iwoZfyf[kr bdjkjukesa dks dSfUly djkus dh ckcr /kks[kk nsdj fy[kk;k gS] tSlk fd Áfrokn i= esa dgk x;k gS\

¼4½ D;k oknhx.k dk okn lkgwdkjh vf/kfu;e ds Áko/kkuksa ls ckf/kr gS tSlk fd Áfrokn i= dh /kkjk 21 esa dgk x;k gS\

¼5½ D;k bdjkjukek /kkjk 168&, tehankjh mUewyu vf/kfu;e ds Áko/kku ls ckf/kr gS\

¼6½ D;k nkokoknh _.k jkgr vf/kfu;e dh /kkjk 3] 4] 5 ls ckf/kr gS\

¼7½ oknhx.k fdl vuqrks"k dks ikus ds vf/kdkjh gS\

5. A perusal of the aforesaid issues indicates that issues No. 1, 2, 3 and 5 are the relevant issues concerning the merits of the dispute. On the aforesaid issues the parties were given full opportunity to adduce evidence and both the parties adduced the necessary evidence. The oral evidence of the parties was also recorded. Thereafter, it appears on the date fixed, the defendant-appellant failed to appear either personally or through the Counsel and therefore the Court proceeded and decided the suit on merits vide judgment and order dated 5.7.2000. The suit was decreed. The defendant appellant preferred appeal which was dismissed after examining findings on each and every issue recorded by the Court of first instance.

6. Now in this appeal three points have been raised by the learned Counsel for the defendant-appellant.

7. First, the Courts below erred in proceeding under Order