JUDGMENT :- This is a defendants second appeal arising out of a suit filed by the plaintiff for specific performance of a contract of sale dated 1-3-1964 and for possession of the plots involved therein. A claim was also made for the recovery of Rs. 300/- as damages and for pendente lite and future damages at the rate of Rs. 100/- per month.

2. The plaintiffs case was that he was a Bhumidhar in possession of the land in dispute measuring 2 Bighas 18 Biswas and 10 Biswansis situated in village Kalal Kheria, District Agra. He was in urgent need of Rs. 3,000/- in Dec. 1963 and had requested the defendants for an advance on the security of his bhumidhari plots. The defendants agreed to advance the loan but insisted that the plaintiff shall execute a sale deed instead of a mortgage deed with respect to the above plots. The defendants also agreed to execute an agreement to reconvey the property to the plaintiff on payment of Rs. 2,900/-. Accordingly the plaintiff executed the sale deed dated Dec. 6, 1963 and the defendants executed an agreement for reconveying the property to the plaintiff on 1st of March, 1964. Under the terms of agreement for reconveyance the defendants were to sell the land in suit for a sum of Rs. 2,900/- out of which they had received Rs. 100/- as advance and the balance of Rs. 2,800/- they would receive at the time of presentation of the sale deed for registration, the defendants were to reconvey the land in suit whenever required to do so by the plaintiff within a period of 5 years from the date of the agreement. In case the plaintiff failed to get the sale deed executed within the said period of 5 years the amount of advance would stand forfeited and he would not be entitled to get back the property. If, however, the defendants failed to execute the sale deed then the plaintiff would be entitled to get it executed through the Court. The said agreement was registered on 9-6-1964. The plaintiffs case was that the defendants did not agree to reconvey the property as desired by the plaintiff in the month of April and May, 1968. Hence the suit.

3. The defendants contested the suit. They denied the allegations and asserted that since the plaintiff needed the money, he had sold the plots in question for valuable consideration. The defendants did not agree nor did they execute any agreement of reconveyance on 1-3-1964 in favour of the plaintiff. The plaintiff has forged the thumb impression of the defendants on a fictitious document. The defendants also did not receive the sum of Rs. 100/-as advance under said agreement. It was pleaded in the alternative that the alleged agreement being without consideration was illegal and not enforceable in law. The plaintiff was, therefore, not entitled to any decree for specific performance of the contract nor for damages.

4. The Trial Court on a consideration of the record and the circumstances of the case decreed the plaintiffs suit for specific performance of the agreement of reconveyance dated 1st of March, 1964. The Trial Court directed the delivery of possession to the plaintiff and also decreed Rs. 300/- as damages besides Rs. 100/- per month as damages payable on 1-3-1969, till the date of delivery of possession. The lower appellate court has dismissed, the appeal of the defendant and confirmed the decree passed by the Trial Court. Hence this Second Appeal.

5. I have heard the learned Counsel for the parties at considerable length and have also scrutinised the evidence on record. Counsel for the appellant submitted that the deed of reconveyance dated 1st of March 1964 has not been proved in accordance with law in as much as no attesting witness has been produced in proof of the signature of the executant. He has argued that mere execution of agreement of re-conveyance on 9th of June 1964 does not establish the execution of the same by the plaintiff. (sic) In support of his submission he has also relied upon some cases which I shall deal with hereinafter.

6. I have carefully

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