Hon’ble Anil Kumar, J.—Heard Sri Vimal Kishore Verma, learned counsel for the appellant, Sri Amit Kumar Awasthi, learned counsel for respondents and perused the record.

2. By means of present second appeal under Section 100 C.P.C., plaintiff/appellant has challenged the judgment and decree dated 16.9.2004 passed by District Judge, Sitapur in Civil Appeal No. 91 of 2003 (Ram Kumar v. Praveen Kumar alias Pinku) by which appeal filed by defendant/respondent was allowed and judgment and decree dated 6.12.2003 passed by Civil Judge (J.D.) Biswan District Sitapur in Civil Suit No. 85 of 1998 (Pravendra Kumar Alias Pinku v. Ram Kumar) was set aside.

3. Facts, in brief, of the present case are that plaintiff/Pravendra Kumar @ Pinku filed a Civil Suit for specific performance of contract and permanent injunction, registered as 85 of 1998 (Pravendra Kumar alias Pinku v. Ram Kumar) on the ground that the plaintiff has settled with the defendant to purchase of plot No. 381 area 0.902 hectare situate at village Lashkerpur Pergana and Tehsil Biswan District Sitapur. The defendant has executed an agreement to sell after receiving Rs. 18000/- from the plaintiff in presence of the witness. It was settled that Rs. 22300/- would be payable as sale price, out of which through the agreement to sell Rs. 18000/- was paid as earnest money and possession of the plot was handed over. It is further stated in the plaint that it was agreed between the parties that agreement to sale may be executed within six month after giving remaining sale price. However, in spite of the said fact, plaintiff has arranged remaining amount of sale and has requested the defendant to execute the sale but the same was denied by the defendant on so many pretext. On 10.3.1998, it came to the knowledge of the plaintiff in the village that the defendant intends to sell plot No. 381 on excessive amount to one Ram Khelawan son of Chandrika or to other persons and not willing to sell the plot to him so a suit for specific performance has been filed. Thereafter defendant has filed written statement denying the allegation as made by the plaintiff.

4. The trial Court, after exchange of pleadings, had framed six issues for deciding the suit and on the basis of material came to the conclusion that the agreement to sale has been executed by defendant in favour of plaintiff in respect of sale of the land in dispute and in advance Rs. 18000/- has been received by the defendant and the possession of the same has been given to the plaintiff and also held that agreement for specific performance do not require any re-registration under Section 17 of the Indian Registration Act, 1908.

5. Accordingly by means of judgment and decree dated 6.12.2003 allowed the suit of plaintiff thereby directing that defendant after receiving the remaining amount of Rs. 4500/- shall execute the sale-deed within a period of two months in favour of plaintiff.

6. The judgment and decree dated 6.12.2003 passed in regular Suit No. 85 of 1998 (Pravindra Kumar v. Raj Kumar) has been challenged by the defendant by filing Civil Appeal No. 91 of 2003 (Ram Kumar v. Pravindra Kumar alias Pinku).

7. Appellate Court in order to decide the controversy has framed the following point of determination as per the provisions as provided under Order 41 Rule 31 CPC which are quoted as under :

“1. Whether the agreement to sell is compulsorily registerable under law, if so its effect?

2. Whether the defendant appellant has ever executed any agreement to sell in favour of the plaintiff-respondents? If so its effect.

3. Whether the plaintiff-respondent was ever ready and willing to perform his part of agreement?

8. Thereafter, appellate Court after taking into consideration the facts and material on record has allowed the appeal and set aside judgment and decree passed by trial Court in favour of plaintiff in a suit for specific performance vide order dated 16.9.2004. Aggrieved by the same, present second appeal has been filed by