A. K. SRIVASTAVA, J.

( 1 ) FEELING aggrieved by the judgment and decree dated 28-9-1995 passed by learned XIth, Additional Judge to the Court of District Judge, Indore in civil suit No. 78-A/90 decreeing the suit of plaintiff for specific performance of contract, the defendants/appellants have preferred this appeal.

( 2 ) THE facts shorn on unnecessary details lie in a narrow compass. In brief the case of plaintiff is that, he is the tenant in the house bearing municipal No. 268 (New No. 381), situated at M. G. Road, Indore, the owner of which is appellant Vijay Bahadur (hereinafter referred to as the appellant No. 1 ).

( 3 ) THE appellant No. 1 agreed to sell his house tothe plaintiff for a consideration of Rs. 40,000/- (Rupees forty thousand only) and executed a document of agreement of Sale (Ex. P/1) on 6-12-1988 and received Rs. 15,000/- (Rupees Fifteen Thousand only) as an advance money from the plaintiff/respondent. It was agreed between the parties in the said agreement that appellant No. 1 would get his name mutated in the Municipal record of the disputed house within a period of six months and thereafter, would receive the balance of sale price Rs. 25,000/- (Rupees Twenty Five Thousand Only) and execute the sale-deed in favour of the plaintiff. According to the plaintiff, the appellant No. 2 had knowledge about the execution of the document of agreement of sale (Ex. P/1 ). It has been contended by the plaintiff that he always remain ready and willing to get the sale-deed executed in his favour, but, as appellant No. 1 failed to get his name mutated in the Municipal record, the sale deed could not be executed.

( 4 ) IT has been putforth by the plaintiff that, when his wife went to the shop of appellant No. 2 in the month of August, 1990, she was informed by the appellant No. 2 that he is going to purchase the suit house, in which the plaintiff is residing. Upon getting this information, she immediately narrated, the said fact to the plaintiff. In the month of September, 1990, the plaintiff came to know that the disputed house has been sold to the appellant No. 2 for a consideration of Rs. 80,000/- (Rupees Eighty Thousand only ). The plaintiff, thereafter, sent notice (Ex. P/3) to the appellant No. 1 to execute the sale-deed. In the plaint, it has been pleaded that despite having served the said notice, the plaintiff failed to execute the document of sale, hence, the suit for specific performance of the contract was filed on 20-10-1990. It has also been pleaded by plaintiff that despite having entered into an agreement of sale, the appellant No. 1 sold the disputed house in favour of appellant No. 2. As a result of which a relief of cancellation of the said sale deed dated 7-9-1990 was sought. ( 5 ) THE defendants filed separate statements denying the plaint averments. According to the appellant No. 1, the plaintiff was in need of money, hence, he took back the earnest money of Rs. 15,000/- (Rupees fifteen Thousand Only) in the month of January, 1989 and cancelled the agreement. Thereafter, he entered into an agreement of sale with the defendant/appellant No. 2 on 3-1-1990. A public notice (Ex. D/1) was also published in "dainik Bhaskar" on 18-6-1990 regarding this sale but no body including the plaintiff, objected, hence, he executed the registered sale-deed of the house in question, in favour of the defendant/appellant No. 2. It has been pleaded by the appellant No. 1 that plaintiff was never ready and willing to perform his part of contract and was not at all interested in getting the sale deed executed.

( 6 ) THE defendant/appellant No. 2 in his written statement denied the plaint averments and pleaded a total ignorance about the previous agreement dated 6-12-1988. It has been pleaded by him that no conversation took place between him and plaintiff's wife in the month of August, 1990 and the entire story about it, is baseless and false. After the publication of public notice in a news paper "dainik Bhaskar" dated 18-

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