JUDGMENT

N. D. Ojha, J. - This is a defendant's second appeal against the judgment and decree dated 16-4-197 1, passed by the Civil Judge, Basti, decreeing the suit of the plaintiff- respondents for specific performance of a contract of sale dated 30-4-1968, and directing the appellant to execute a registered sale deed in favour of the plaintiffs in respect of the property in suit within a period of two months on receipt of Rs. 15,625/-.

2. The case of the plaintiff-respondents was that the appellant entered into an agreement with them on 30-4-1968, to sell certain plots for a sum of Rs. 60,000/- and executed a registered agreement in this behalf. According to them a sum of Rs. 13,000/- had been paid by them to the appellant prior to the execution of the agreement and another sum of Rs. 7,000/- was paid to him at the time of the registration of the agreement before the Sub-Registrar. Their case further was that from time to time thereafter they made several other payments also to the appellant in the sum of Rs. 25,685/- so that the total amount paid by them to the appellant came to Rs. 45,685/-. In regard to the balance of Rs. 14,315/- of the sale consideration of Rs. 60,000/- the case of the respondents was that they were all along prepared to get the sale deed executed on payment of the said sum of Rs. 14,315/- but since the appellant did not execute the sale deed the suit for specific performance had to be filed. They averred that they were prepared to pay the balance of Rs. 14,315/- and prayed for a decree for specific performance of the aforesaid agreement being passed in their favour on payment of Rs. 14,315/-.

3. The suit was contested by the appellant inter alia on the grounds that the property which was the subject matter of the contract of sale was wakf property and was inalienable, that indeed he had only taken a loan of Rs. 7,000/- under the aforesaid agreement and the said sum of Rs. 7,000/- or any further sum to be advanced by the respondents up to a maximum of Rs. 53,000/- was to be recovered by the respondents as a simple debt. According to him the agreement in question was a simple money bond and the suit for specific performance of the aforesaid agreement treating it to be a contract of sale was not maintainable. His case further was that the sum of Rs. 13,000/- said to have been paid to him prior to the execution of the agreement was never paid to him and the entry in this behalf was fictitious. In regard to the payments of Rs. 25,685/- said to have been paid by the respondents to him subsequent to the execution of the sale deed from time to time his case was that only a sum of Rs. 24,375/- had been received by him and that too was paid to him by Mohibullah Khan, the elder brother of respondent 1 and the husband of respondent 2, on behalf of the business concern M. B. Kanchwala towards certain business transactions.

4. After framing the necessary issues on the basis of the pleadings of the parties and considering the evidence produced by them the trial court inter alia held that the agreement dated 30-4-1968, had been executed by the appellant knowing it to be an agreement of sale of the properties stated therein, that Rs. 13,000/- had been paid to the appellant before the execution of the said agreement and another sum of Rs. 7,000/- was paid at the time of the execution of the agreement before the Sub-Registar. As regards the payment of Rs. 25,685/- after the execution of the aforesaid agreement the trial court held that the respondents had failed to prove payment of Rs. 1310/- to the appellant out of the aforesaid sum and that only a sum of Rs. 24,375/- had been paid to him. In regard to this sum the trial court disbelieving the appellant's version accepted the respondents' assertion that the said sum was paid not towards any business transaction but towards the agreement dated 30-4-1968. The trial court, however, recorded a finding in favour of the appellant on his plea that the properties which were the