Hon’ble Siddharth, J.—Heard Sri Kripa Shankar Singh, learned counsel for the appellants and Sri Arvind Srivastava III, learned counsel for the respondents.

2. This is defendant’s second appeal against the judgment and decree dated 22.12.1990 passed by Additional District Judge, E.C. Act, Mainpuri in Civil Appeal No. 135 of 1989 in Civil Appeal No. allowing the Civil Appeal of the plaintiff and setting aside the judgment and decree dated 12.5.1989 passed by Civil Judge, Mainpuri in Original Suit No. 56 of 1985.

3. Plaintiff instituted the suit praying for a decree of specific performance of contract of sale dated 11.7.1984. Alternative relief of refund of advance sale consideration of Rs. 2000/- was also prayed.

4. Plaintiff’s case is that she entered into an agreement to sell with defendant No. 1, Devi Dayal, on 11.7.1984 which was registered on 31.7.1984; that the land agreed to be sold was situated in Abadi, Mohalla Bada Bazar, Kasba, Bhugaon, District Judge, Mainpuri; that the total sale consideration was Rs. 14,000/- out of which Rs. 2000/- was paid as advance; that Rs. 12,000/- was to be paid at the time of registration of the sale-deed; that the plaintiff had always been ready and willing to get the sale-deed executed in her favour but the defendant No. 1 did not agreed to the same; that the plaintiff sent a notice dated 27.3.1985 by registered post asking the defendant No. 1 to appear before the Sub-Registrar, Bhugaon on 1.4.1985 for registration of the sale-deed but he did not turn up though she remained present in the Sub-Registrar Office; that she sent another notice dated 2.4.1985 but again the defendant No. 1 did not appeared and instead he executed a sale-deed in favour of defendant No. 2, Moinuddin, for an amount of Rs. 10,000/- on 17.4.1985; that defendant No. 2 has the knowledge of agreement to sale dated 11.7.1984 executed by defendant No. 1 in her favour but he got the sale-deed executed and is trying to take possession of the land by force and hence the suit praying for injunction.

5. Defendant No. 1, Devi Dayal, filed his written statement denying any agreement to sell with the plaintiff. He admitted receipt of Rs. 2000/- from one Nawab Singh for his treatment and further stated that Nawab Singh got the disputed agreement to sale executed in favour of plaintiff in the garb of document of security for loan; that the defendant No. 1, denied receipt of any notice for execution of sale-deed from plaintiff and admitted execution of sale-deed in favour of defendant No. 2; that he further stated that the disputed land is joint property of the defendant No. 1 alongwith his brother, Anokhe Lal and therefore he has no right to sell any specific part of the same without partition; that the partition of the property however took place prior to execution of sale-deed in favour of defendant No. 2; that plaintiff had never been ready and willing to get the sale-deed executed and her suit is barred by Section 23 of the Contract Act and Section 16 and 20 of the Specific Relief Act.

6. Defendant No. 1, Devi Dayal, after filing his written statement died and his legal heirs were substituted but they never appeared before the trial Court to contest the suit nor they filed any evidence. The suit was proceeded and decided ex-parte against them.

7. Defendant No. 2, Moinuddin, filed his written statement and asserted that he has got the sale-deed dated 17.4.1985 executed for value after paying the sale consideration and is in possession over the same as owner; that he denied any knowledge of the agreement of sale executed by defendant No. 1, in favour of plaintiff and prayed for benefit of Section 41 of the Transfer of Property Act; that he denied that defendant No. 1 ever executed any agreement to sell of his joint property; that plaintiff never had the capacity to purchase the land in dispute for Rs. 14,000/-, and the disputed agreement to sell is forged and fabricated; that the suit of the plaintiff is barred by Section