Hon’ble Sudhir Agarwal, J.—Heard Sri Amit Kumar Singh, Advocate, holding brief of Sri P.K.Jain, Advocate, appearing for the appellant.

2. This is plaintiff’s appeal. He instituted original suit No. 316 of 1991 for refund of Rs. 50,000/-, pursuant to an agreement for sale, dated 15.11.1979. The suit was decreed by Trial Court vide judgment and decree dated 23.2.1995 but the same has been reversed by lower Appellate Court while allowing defendant-respondent’s Civil Appeal No. 73 of 1995.

3. The case set up by plaintiff-appellant is that in respect to house No. 183 (new No. 73) an agreement for sale, for a consideration of Rs. 1,80,000/-, was executed with plaintiff on 15.11.1979 and part consideration of Rs. 50,000/- was paid to the defendant vendor. It was also mentioned in the agreement for sale that plaintiff-appellant had been given possession of one room in the house. Subsequently plaintiff submitted that he gave certain notices to the defendant that possession of room was not handed over and it should be given. These notices are dated 29th January, 1990 and 3rd July, 1990. In the later notice dated 3rd July, 1990, plaintiff-appellant also called upon defendant to take steps for execution of sale-deed and present herself before Sub—Registrar, Meerut for registration thereof. Since defendant respondent still failed, a third notice was given on 13.8.1990 revoking agreement, as a result whereof, plaintiff is now entitled for refund of Rs. 50,000/-.

4. The suit was contested by defendant alleging that possession of room was already handed over to the plaintiff and this fact was duly mentioned in the agreement for sale dated 15.11.1979. She also stated that there was a condition mentioned in the agreement for sale that sale-deed shall be executed after obtaining necessary permission from competent authority and since that permission could not be obtained therefore sale-deed was not executed. The permission was ultimately obtained on 9.5.1991 whereafter defendant requested the plaintiff to come forward for execution of sale-deed but he failed, therefore, is not entitled to refund of any amount.

5. The Trial Court formulated various issues but relevant thereof, issues No. 1, 4 and 5 are as under:

^^1& D;k izfroknuh us vuqcU/k dh 'krksZ ds vuqlkj oknh dks dejs dk vkf/kiR; ugh fn;k\

4& D;k izfroknuh us fookfnr dejs dk dCtk oknh dks fodz; vuqcU/k ls iwoZ ns fn;k gS\

5& D;k iz’uxr dejs dk dCtk fn;s tkuk lafonk dk eeZ Fkk\

“1. Whether defendant had not handed over possession of room to the plaintiff according to conditions of the agreement?

4. Whether defendant had handed over possession of disputed room to the plaintiff prior to agreement for sale?

5. Whether handing over of possession of disputed room was essential part part of contract?” (English Translation by the Court)

6. These three issues were decided together. The Trial Court disbelieved the fact that possession was handed over to the plaintiff, mentioned in the agreement for sale dated 15.11.1979, on four aspects:

i. The defendant-owner did not reply various notices of plaintiff.

ii. It is not believable that on the payment of Rs. 1,000/- possession of one room could have been handed over.

iii. There is no entry of plaintiff’s name in Municipal records inasmuch as, if he would have been given possession of one room, his name would have been recorded in Municipal records.

iv. Defendant could not adduce any evidence to show that possession was handed over.

7. The lower Appellate Court reversed findings of Trial Court on these issues observing that in view of Section 92 of Evidence Act, 1872 (hereinafter referred to as “Act, 1872”) oral evidence in respect to the facts stated in written agreement shall not be admissible.

8. It is evidently clear that Trial Court has not at all adverted to Section 91 or 92 of Act, 1872. It is also not disputed that agreement clearly mentioned the fact that plaintiff has got possession of one room in the house. He, however, subsequent