Hon’ble Sudhir Agarwal, J.—Heard S.K.Mishra, Advocate and Sri Shri Kant, Advocate for the respective parties.

2. These are two appeals arising out of a common judgment of IIIrd Additional District Judge, Fatehpur in Civil Revision No. 81 of 1997 and therefore, as agreed by learned counsel for the parties, have been heard together and are being decided by this common judgment.

3. The plaintiff Om Prakash instituted original suit No. 158 of 1974 vide plaint dated 8.4.1974 for specific performance of contract pursuant to agreement dated 21st January, 1970 for purchase of shop owned by Sri Baij Nath Singh, defendant-respondent for a total sum of Rs. 5,000/- whereagainst Rs. 3,000/- as earnest money was already paid. It was alleged that plaintiff had always been ready to perform his part of contract and the cause of action arose on 24th March, 1974 when defendant declined to execute sale-deed.

4. The suit was contested by defendant with averments that there could not have been any contract with the plaintiff, he being minor on 21.1.1970, and was incapable of enforcing such agreement; the defendant never agreed to sell his shop nor executed agreement dated 21.1.1970 nor received any money towards advance as alleged in the plaint.

5. The Trial Court framed following four issues:

^^1&Dk oknh fnukad 21&01&70 dks vko';drk ds vk/kkj ij fodz; dk djkj ;fn dksbZ fd;k x;k gks] djus ds fy, l{ke ugh Fkk\

2& D;k izfroknh fookfnr nqdku dks :0 5000@&esa oknh dks fodz; djus ds laca/k esa dksbZ djkj fd;k Fkk rFkk fnukWad 21&1&70 dks mlus djkjukek fu"ikfnr fd;k \

3& D;k dCtk oknh dk gS \

4& oknh D;k fdlh vuqrks"k ds izkIr djkus dk vf/kdkjh gS \^^

“1. Whether plaintiff, being a minor as on 21.1.1970 was not competent to enter into any sale-deed, if executed ?

2. Whether defendant had entered into an agreement with plaintiff for sale of shop in dispute at the cost of Rs. 5,000/- and executed a deed on 21.1.1970.

3. Whether plaintiff has possession over it ?

4. Whether plaintiff is entitled to get any relief ?”

(English Translation by the Court)

6. Both issues No. 1 and 2 were decided against plaintiff and issue No. 3 in respect to possession of shop in question thus was decided against him. The suit accordingly was dismissed by judgment and decree dated 4th March, 1977. Aggrieved thereto, plaintiff preferred Civil Appeal No. 81 of 1977. The lower Appellate Court found that there was manifest error on the part of Trial Court in treating plaintiff minor though he had clearly given his age 25 years on the date of filing suit and further observed that if the age of plaintiff was not admitted to the defendant, he was to prove his claim and onus could not have been shifted to plaintiff. On the question of execution of agreement, he recorded a finding in favour of plaintiff but then considering discretionary remedy in the matter of specific performance, declined to decree the suit for specific performance of contract but directed refund of advance money to the plaintiff and in the circumstances, appeal of plaintiff was partly allowed and judgment of Trial Court was modified to the extent of refund of Rs. 3,000/- to the plaintiff Om Prakash.

7. The plaintiff and defendant both have filed present two appeals to the extent judgment of lower Appellate Court has gone against them.

8. Besides, defendant-respondent has also filed cross objection in appeal No. 2291 of 1978 of plaintiff-appellant. This Court formulated following question of law in appeal preferred by plaintiff-appellant:

“Whether Court below has rightly refused the relief for specific performance of the contract?”

9. In the appeal preferred by defendant-appellant this Court formulated following substantial question of law:

“Whether the Court below was justified in granting the relief for recovery of Rs. 3,000/- on the basis of evidence on which it has rejected the relief for specific performance of agreement.”

10. In the plaint, plaintiff has described himself mentioning his age as 25