Hon’ble Pramod Kumar Srivastava, J.—Heard learned counsel for the appellant on the point of admission of second appeal and perused the records.

2. In original suit No. 45/2007 (Gajraj v. Jai Shankar), the plaint case in brief was that defendant is owner of a portion a land of (1-1-5) of plot No. 898 situated in village Jorai. This plot has been partitioned and defendant has agreed to sale whole of share of this plot No. 898 to plaintiff for a consideration of Rs. 1,50,000/- and executed the registered agreement to sell dated 27.2.2005 in that regard, and paid Rs. 1,00,000/- as advance consideration. After that plaintiff has been ready and willing to perform his part of contract and was ready and willing to purchase the said land, but in spite of his reminders the defendant had been delayed in execution of sale-deed. Then plaintiff had given the defendant a registered notice dated 17.1.2007 which was received by defendant, but he answered the same mentioning incorrect facts in his reply in which he had stated that he had taken Rs. 1,00,000/- as loan on interest at the rate of 12 per cent per annum and had executed deed of loan. Since the defendant had refused to execute the sale-deed of disputed property, therefore the plaintiff had filed suit for specific performance of his contract dated 17.2.2005.

3. The defendant had filed written-statement by which he denied the plaint averments and further pleaded that disputed property was not partitioned between its co-sharers. The agreement to sell was not executed as mentioned in plaint. The plaintiffs used to cultivate the defendant’s agricultural land on Batai for several years. The defendant had needed of Rs. 1,00,000/- for purchasing tractor, so he requested for loan from plaintiff. The plaintiff had persuaded him to execute the deed of loan, but he had fraudulently got executed the registered deed of agreement to sell. The defendant had never consented to sell his land. He is ready to return Rs. 1,00,000/- to plaintiff with interest. The plaintiff’s suit is liable to be dismissed.

4. After receiving evidences and affording opportunity of hearing to the parties, the Additional Civil Judge (S.D.), Gyanpur, Bhadohi had decreed the original suit for relief of specific performance of contract by its judgment dated 6.8.2013. Then Civil Appeal No. 61/2013 (Jai Shankar v. Gajraj) had been preferred against the judgment trial Court which was heard and dismissed by the judgment dated 3.9.2015 by Additional District Judge, Bhadohi, Gyanpur. Aggrieved by this judgment of trial Court as well as the first appellate Court, this second appeal has been preferred by defendant of original suit.

5. Learned counsel for the appellant contended that agreement to sell in question was executed on 17.2.2005 and registered notice for specific performance was given by plaintiff to defendant on 17.1.2007, but it is not written in plaint that what the plaintiff was doing in such a long period. He argued that if plaintiff was in fact willing to perform his part of contract dated 17.2.2005, then he would not have waited for such a long time which shows his lack of readiness and willingness to perform his part of contract. He also contended that plaintiff had not given any explanation in his evidence as to what was he waiting for during such long period after execution of registered agreement to sell dated 17.2.2005 and before institution of suit. His main argument was that although suit was filed within period of limitation, but it is not proved that plaintiff was always ready and willing to perform his part of contract. In such circumstances only relief of return of advance consideration should have been passed instead of decree of specific performance. In this regard, learned counsel for the appellant relied on certain judgments of Apex Court which are being discussed hereinafter.

6. The appellant side had relied a case of I.S. Sikandar (Dead) By LRS. v. K. Subramani and others, (2013) 15 SCC 27, in w