Hon’ble Prakash Krishna, J.—Questioning the legality, validity and propriety of the judgment and decree dated 10th October, 2007 passed by the Additional Civil Judge (Senior Division), Ghaziabad in Original Suit No. 1213 of 2004, the present appeal is at the instance of the defendant.

2. Three storied house measuring 200.67 square meter situate at R-86 Pratap Vihar, Ghaziabad is the property in dispute. The defendant who is appellant herein (hereinafter referred to as ‘the defendant’) is the owner and in possession thereof. He, on 24th July, 2002 entered into a registered agreement to sell in favour of two plaintiffs, namely, Ram Avtar and Jogendra Singh, respondents herein (hereinafter referred to as ‘the plaintiffs’) for a sum of Rs. 7,50,000/- out of which a sum of Rs. 5,00,000/- was given before Sub Registrar at the time of registration of the agreement in question as advance money. It was agreed upon that the plaintiffs will get the sale-deed executed after paying the balance sale consideration amounting to Rs. 2,50,000/- on or before 21st July, 2004.

3. The suit giving rise to the present appeal was instituted for specific performance of the aforesaid contract to sell. Also an alternative relief for refund of the advance money together with interest as may deem, fit and proper by the Court was claimed.

4. The suit was instituted on the allegations that the plaintiffs gave a notice dated 3rd February, 2004 to the defendant to execute the sale-deed and be present for the said purpose before Sub Registrar on 24th February, 2004 for execution of sale-deed and receipt of balance amount. The defendant replied the notice on 9th February, 2004 with incorrect and wrong allegations that amount of Rs. 5,00,000/- was taken by him as loan amount. The plaintiffs were present on aforesaid date before Sub Registrar from morning till evening but the defendant failed to appear to execute the sale-deed. The plaintiffs have alway been ready and willing to perform their part of contract and are still ready and willing for the same.

5. The defendant contested the suit by filing written statement on the pleas inter alia that he took Rs. 5,00,000/- as loan and lieu thereof the agreement to sell in question was executed. He took the amount for the purposes of treatment of his daughter Km. Ritu, who is polio patient. It was agreed upon that the defendant will pay interest at the rate of 1% per month. He has paid Rs. 15,000/- per month from August, 2002 to July, 2004, total sum of Rs. 3,60,000/- and had handed over three cheques of Rs. 40,000/- each to the plaintiffs. They refused to accept the cheques, cheque amount was paid in cash. The market value of property in dispute is Rs. 50,00,000/- and that is the reason, the plaintiffs have become dishonest and want to grab it. It was also pleaded that the defendant was present in the office of Sub Registrar on 21st July, 2004, the date fixed in the agreement for the purpose of re-payment of loan amount but the plaintiffs failed to appear. Other pleas such as Court fee paid is not sufficient etc. were also raised.

In replication, the plaintiffs denied theory of loan as was set out by the defendant in written statement.

6. On the basis of pleadings of the parties, the following issues were struck by the trial Court :

(1) Whether the defendant executed an agreement to sell in respect of three storied house measuring 200.67 square meter situate at R-86 Pratap Bihar, Ghaziabad with the plaintiffs, for a sum of Rs. 7,50,000/-?

(2) Whether the suit has been under valued and the Court fee paid is insufficient?

(3) Whether the Court has jurisdiction to hear and decide the suit?

(4) Whether the agreement to sell dated 24th July, 2002 in respect of property in dispute was executed and registered and a sum of Rs. 5,00,000/- was given by the plaintiffs to the defendant as advance money?

(5) Whether the defendant failed to execute sale-deed in respect of the property in dispute in favour of the plaintiffs w