Hon’ble Dinesh Gupta, J.—This second appeal is preferred against the judgement dated 8.5.1983 passed by IVth Additional District Judge, Ghaziabad in Civil Appeal No. 210 of 1982 arising out of judgment dated 14.10.1981 passed by Civil Judge, Ghaziabad in Original Suit No. 303 of 1977.

2. The brief facts, which give rise to this appeal are that the plaintiff-appellant (hereinafter called the “appellant”) filed Suit No. 303 of 1977 for the relief of specific performance of an agreement to sell against the defendant-respondent (hereinafter called the “respondent”).

3. As per the contention of the learned counsel for the appellant, the respondent had 1/4th share in the agricultural plot situated in Village-Bisobhar, Pargana-Jalalabad, District-Ghaziabad. The respondent agreed to sell his share in the above said plots to the appellant for a consideration of Rs. 9000/- and out of the above sale consideration, the respondent received Rs. 99/- as earnest money and Rs. 3901/- towards part payment of the sale. In addition to the above said amount, Rs. 4000/- were paid to the respondent before the Sub-Registrar on 6.10.1975 when the agreement to sell between the parties was executed and registered. It was further agreed that the balance of sale price i.e. Rs. 1000/- shall be paid at the time of registration of sale-deed, which was to be got executed by 5.10.1977. The appellant alleged that he was ready and willing to get the sale-deed executed in terms of agreement to sell and he send a notice to the respondent to execute the sale-deed but the respondent did not agreed to it. On the contrary, the respondent served a notice to the appellant denying the receipt of Rs. 4000/-. The plaintiff left with no option but to file the suit for the specific performance.

4. The suit was contested by the respondent. The respondent admitted that an agreement was arrived at between the parties to sell the land for a consideration of Rs. 9000/-. He, however, denied the payment of Rs. 4000/- to him prior to the execution of the agreement to sell. His contention was that on 6.10.1975, the parties came to the Sub-Registrar’s Office and the agreement was prepared. However, the scribe was in collusion with the appellant and did not read over the agreement to the respondent that he has been paid earlier Rs. 4000/-. Thus, the appellant alongwith witnesses and scribe played fraud upon the respondent. Respondent served a notice upon the appellant that he is not bound to execute the sale-deed. It was further pleaded that the respondent is a landless labourer and under the law, he is not bound to transfer the land in suit.

5. At the time of pleadings of the parties, the following issues were framed:

1. Whether the amount of Rs. 4000/- as earnest money was paid by the plaintiff prior to the execution and registration of the impugned agreement deed of so, its effect?

2. Whether any fraud was played by the plaintiff while getting the agreement executed, if so, its effect?

3. To what relief, if any, is the plaintiff entitled?

6. The learned trial Court decided the issues in favour of the appellant and decreed the suit of the appellant vide its order dated 14.10.1981, which read as under:

“The suit is decreed with costs. The defendants Jagat Singh is directed to execute sale-deed of his 1/4th share in the disputed plots after receiving Rs. 1000/- from the plaintiff within a period of 2 months from the date of decree, failing which it shall be open to the plaintiff to get it executed through Court in the alternative the suit is further decreed for recovery of Rs. 8000/- with pendentilite and further interest @ 6% per annum of this amount.”

7. Feeling aggrieved, the defendant preferred Civil Appeal before the learned Additional District Judge, which was registered as Civil Appeal No. 210 of 1982 and was allowed, which reads as under:

“Plaintiff’s suit for specific performance of the agreement to sell is dismissed. In the alternative the defendant appellant is direc