(Hon’ble B.S. Verma, J.)

This appeal is directed against the judgment and decree dated 10.11.1995, passed by Sri V.P. Singh, Additional District Judge, Roorkee, in Civil Appeal No. 23 of 1991, Satish Chandra Garg(deceased) through L.Rs. Smt. Sheela Rani and others vs. Dharam Veer Singh, whereby the appeal was allowed and the suit of the plaintiff was dismissed.

2. This appeal was admitted on 23-2-1996 by the Allahabad High Court on the following substantial questions of law (C), (E) and (F) framed in the memo of appeal:-

(C) Whether the lower appellate court did not consider the entire evidence of the plaintiff on the finding of readiness and willingness along with the pleadings and based its judgment on one line only?

(E) Whether since the defendant admitted the execution of the agreement thus in view of Section 91 and 92 of the Evidence Act the suit of the plaintiff ought to have been decreed?.

(F) Whether the finding of the court below that the contract is one sided and oppressive is illegal and perverse in view of the fact that the willful execution of the agreement was admitted by the defendant?.

3. Briefly stated the facts, giving rise to this appeal, according to the plaintiff/appellant, are that the plaintiff/appellant Dharam Veer Singh executed an agreement to sell the land in question on 29-11-1980 in favour of defendant/respondent Satish Chandra Garg with a consideration of Rs. 59,000/-, out of which Rs. 10,000/- were paid to the plaintiff as an advance money by the defendant. The defendant did not execute the sale deed in favour of plaintiff and on 30-10-1982, the plaintiff sent notice to defendant to remain present before the Sub-Registrar, Roorkee on 27-11-1982 to execute and register the sale deed in favour of plaintiff but he did not turn up. The last date of execution of sale deed as per the agreement dated 29.11.1980 was 28-11-1982 but 28.11.1982 was Sunday, and on that day also the defendant did not turn up. Again on 29-11-1982 the plaintiff remained present before the Sub Registrar Roorkee along with the amount of remaining consideration and recorded his attendance before the Sub Registrar, on 29-11-1982 but the defendant did not turn up. Hence on 7.1.1983, Suit No. 7 of 1983 was filed by the plaintiff for specific performance of the contract.

4. The defendant has filed his written statement on 12-8-1983 and denied the fact that the agreement was written to execute the sale-deed, and stand has been taken that the agreement was executed between the parties as security of loan advanced by the plaintiff to the defendant to the tune of Rs. 10,000/- and specific plea was taken that the plaintiff was never ready and willing to perform his part of contract nor he had money with him to pay the same to the defendant.

5. The learned Civil Judge(S.D.) Roorkee, framed necessary issues in the suit and parties led evidence. Then after considering the evidence of parties and hearing counsel for the parties, the trial court decreed the suit vide judgment and decree dated 30-11-1983. Being aggrieved by the judgment and decree of the trial court, the defendant preferred Civil Appeal No. 23 of 1991, Satish Vs. Dharam Veer Singh. The appellate court vide impugned judgment and decree 10-11-1995 allowed the appeal and the suit of the plaintiff was dismissed.

6. I have heard learned counsel for the parties and perused the record.

Finding on Substantial Question No. (C)

7. This question relates to finding of appellate court on the point of readiness and willingness to perform the part of contract. The trial court had framed Issue No.7 on the point of the plaintiff’s willingness and readiness to perform his part of contact. The learned trial court has recorded by the finding of readiness and willingness of the plaintiff to perform his part of performance of contract on the basis of evidence of plaintiff P.W.1, Dharam Veer Singh, who had stated that he had given notice to defendant to remain present before Sub